New York Estate Planning & Elder Law Blog
Two weeks after major surgeries, medical treatments, and life-saving procedures a doctor found his patient’s advance directive in his medical chart. Suffering from dementia and unable to communicate, the patient was unable to tell his doctors about the document that stated “he wanted comfort care only, no heroics.” This story illustrates one of a number of growing problems that medical professionals have with advance directives.
Advance Directives and Living Wills
Advance directives, which commonly include living wills and advance healthcare proxies, dictate the wishes of a person’s future care. A living will is used to communicate which treatments and procedures you would like performed in the case that you are unable to communicate them yourself. It is most commonly known for dictating whether a person wishes to be resuscitated in life threatening situations.
A healthcare proxy is used to appoint a person to make healthcare decisions for you if you become incapacitated. However, if a living will also exists then the healthcare proxy is bound by those terms when making healthcare decisions.
A final form commonly associated with advance directives is a “Physician Orders for Life Sustaining Treatment,” or Polst form. This document is filled out by health care professionals alongside their patients and can stipulate that only comfort measures be applied, to perform full life-prolonging intervention, or various options in between.
Increase in Advance Directive Popularity
When Congress passed the Patient Self-Determination Act in 1990, healthcare professionals urged their older patients to fill out advance directives and pass them out to their family members. As a result, the number of Americans over the age of sixty rose by 72% between 2000 and 2010. However, since the introduction of this legislation there have also been issues that have arisen with carrying out a proper advance directive.
Problems with Advance Directives
There are many stories of advance directive documents that have been misplaced, lost, stashed in safe deposit boxes, or filed away in a forgotten drawer. One doctor remembered having a patient who’s advance directive was found tucked inside of a Bible. Unfortunately, when the hopes of a patient are not backed up by an advance directive, their wishes are overridden by medical necessity.
Advance directives also fail because they are not medical orders. Vague language and outdated vocabulary do not always give medical professionals enough to know how to proceed. Emergency medical personnel operate under standing orders to attempt resuscitation, whatever an advance directive says. Only a state “do-not-resuscitate” or Polst form can prevent that measure from being taken. “You may already be on a breathing machine before you pull into the E.R.”
Finally, patients that use a Polst form instead of other advance directives also come across issues. Implementing this type of document requires a coordinated statewide system involving hospitals, nursing homes and hospices. However, some states like Oregon and West Virginia have instituted developed systems for tracking a Polst form, and forty out of fifty states are well along in their implementation of the system.