Legal Considerations for the Sick and Dying
♱ Introduction
When a loved one is sick or approaching death, legal situations may arise for family and loved ones. To better assist you with making critical legal decisions, we have collected all of the necessary information. Where possible we have included information in accordance with the perennial teachings of the Catholic Church. The following information is for your review and not to be considered as individual legal advice.
♱ Advanced Directive
An Advance Directive is a document by which a person makes provision for health care decisions in the event that, in the future, he/she becomes unable to make those decisions.
There are two main types of Advance Directives: the “Living Will” and the “Durable Power of Attorney for Health Care.” There are also hybrid documents which combine elements of the Living Will with those of the Durable Power of Attorney. Additionally, there are orders such as a “Do-Not-Resusitate” and a POLST Form.
♱ Living Will
A Living Will is the oldest type of health care Advance Directive. It is a signed, witnessed (or notarized) document called a “Declaration” or “Directive.” Most declarations instruct an attending physician to withhold or withdraw medical interventions from the patient when in a “terminal condition” or unable to make decisions about their medical treatment.
⚠️ WARNING: Although an attending physician may be unfamiliar with the patient, or worse, disinterested in knowing their Catholic values and instructions, they have the power and authority to interpret the document as they wish. Family members who are familiar with the patient’s Catholic values and instructions have no legal standing to interpret the meaning of this type of directive. It actually gives power over the patient’s life and death, to an unknown physician.
♱ Do-Not-Resuscitate Order (DNR)
The Do-Not-Resusitate Order or “DNR” is a binding medical order signed by a physician. A DNR order applies specifically to Cardiopulmonary Resuscitation (CPR) and directs medical personnel when a patient stops breathing or their heart stops beating, not to administer chest compressions or mouth-to-mouth resuscitation.
A DNR order applies only to a person who has gone into cardiac arrest. It does not mean that this person has refused other types of medical assistance, such as mechanical ventilation, defibrillation, intubation (the insertion of a breathing tube down a patient’s throat), medical tests or intravenous antibiotics, among other measures.
⚠️ WARNING: DNR orders are often wrongly equated with “do not treat” at all by emergency room personnel. This may be due to the misunderstanding of the limited scope of DNR orders by some, while others intentionally over-apply it to other life-sustaining treatments. Hospital staff can make end-of-life assumptions about a patient because of their lack of time, or their discomfort with having a conversation with the family about it. While these providers may believe their decisions are made in the patient’s best interest, their judgment is subjected to their typically secular world view.
♱ Physician Orders For Life Sustaining Treatment (POLST)
A POLST form is a set of medical orders for a “seriously ill” or frail patient who is expected to die within a year. It is signed by a physician, physician assistant or nurse practitioner. This form varies by state and is meant to be prepared after a detailed conversation about a patient’s treatment options, prognosis and values.
⚠️ WARNING: Problems have emerged with POLST’s increased use. Some nursing homes are asking all patients to sign a POLST form, even those admitted for short-term rehabilitation and those not expected to die. The “conversations” with patients can be cursory, not comprehensive, and forms often aren’t updated when a patient’s medical condition improves.
♱ Durable Power of Attorney for Health Care
A Durable Power of Attorney for Health Care is a signed, witnessed (or notarized) document in which the patient designates an agent to make health care decisions if the patient is temporarily or permanently unable to make such decisions. Unlike most Living Wills, the Durable Power of Attorney for Health Care does not require that the patient have a terminal condition. The patient designates a trusted family member or friend to make health care decisions for them, in the event that they are unable.
⚠️ WARNING: A designated agent must be chosen with extreme care since they will have great power and authority to make life and death decisions about whether health care will be provided, withheld or withdrawn. It is extremely important that the patient carefully explicate their Catholic values and instructions with the designated agent before signing such a document. It is also important that the designated agent be willing to steadfastly exercise their power and authority, to make certain that the patient’s Catholic values and instructions are followed.
♱ Combination Advanced Directive
A Combination Advance Directive is a signed, witnessed (or notarized) document which contains specific written directions that are to be followed by a designated agent. In addition, the specific written directions may not be altered but necessitate a brand new document to reflect any changes.
⚠️ WARNING: Since it is not possible to predict all future medical circumstances, having directions that are too specific, may severely limit the designated agent’s authority to ensure that the patient’s Catholic values and instructions are respected. It is important that all patients consider carefully who will make medical decisions for them if they are temporarily or permanently unable to make them for themselves. Unless a person has an advance directive, many health care providers and institutions will make critical decisions for him/her or a court may appoint a guardian who is unfamiliar with the person’s values and wishes.
♱ How to Protect Yourself & Your Family
No matter what age, everyone over the age of 18 is at risk if they do not have an Advanced Directive. Most people incorrectly think that such a document is only for those who are very sick or very old. However, the medical and legal establishments have proven to have enormous power over individuals unless they take legal precautions to protect yourself and your family members if you are ever unable to make your own health care decisions. This is known as a Durable Power of Attorney for Health Care.
Few states have laws to protect a patient if they have not designated an agent to make health care decisions for them. Such laws contain a “priority listing” of those who can make some limited decisions for an incapacitated patient but it does not give the necessary authority to protect a patient.
