ADVANCE CARE DIRECTIVES: LIVING AND DYING WITH DIGNITY

By Jennifer & Jeff Hawkins, Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers.

People talk about living wills when they think of severe illness in a hospital. A living will is made under Indiana Code Section 16-36-4-10. It provides that if a doctor certifies in writing that: (1) a person has an incurable injury, disease, or illness; (2) a person’s death will occur in a short time; and (3) artificial life support would only slow down the dying process, the doctor should change from life saving procedures to pain and comfort management procedures. The person also specifies in the living will whether they want to receive artificial food and water through such means as a feeding tube. Unfortunately, a living will is that it only covers an end of life decision and does not cover “gray areas.” Thus, persistent vegetative state cases, such as the Terri Schiavo case, get no relief from a living will.

The living will’s twin sister is a life-prolonging procedures declaration. This declaration specifies that the doctors should do everything in their power to keep the person alive and to provide all kinds of artificial nutrition and hydration. Few people choose this document because few people feel that life should be preserved and sustained regardless of the pain, suffering, and cost that the life-preserving procedures impose on the patient. Most people have a sense that such procedure should have common sense limits.

A group of Indiana doctors and lawyers is working to improve the advance health care directives alternatives through new uniform legislation. The website of the Center for Ethics in Health Care at Oregon Health & Science University says: "The Physician Orders for Life-Sustaining Treatment (POLST) Paradigm program is designed to improve the quality of care people receive at the end of life. It is based on effective communication of patient wishes, documentation of medical orders on a brightly colored form and a promise by health care professionals to honor these wishes." (http://www.ohsu.edu/polst/programs/index.htm Center for Ethics in Health Care, Oregon Health & Science University. Copyright 2008). We hope to see POLST legislation in the Indiana General Assembly in 2012.

Many Indiana doctors and lawyers prefer an appointment of health care representative under Indiana Code Section 16-36-1-7. That appointment, made either as a separate document described generally in the statute or as a document known as a health care power of attorney, empowers a trusted family member or friend to make the entire range of possible health care decisions for the patient if the patient becomes unable to make those decisions independently. You may appoint multiple health care representatives to act unanimously or independently.You may also specify who should not be a health care descision maker. It is a bad idea to require health care representatives to act unanimously because one person may be unavailable.

Some hospitals provide a packet of information and forms that describe living wills and appointments of health care representatives. Unfortunately, the information in those packets tends to confuse patients and their families and may be more harmful and helpful. A lawyer should prepare an appointment of health care representative instead of relying on one of those packets. The client and attorney should discuss these important decisions thoughtfully and determine how and by whom the descisions will be made. 

A terminal patient and his or her doctor may establish an out-of-hospital do not resuscitate (“DNR”) declaration and order under Indiana Code chapter 16-36-5. The doctor must certify that the person qualifies, as a patient with a terminal health condition or with another condition for which resuscitation would be unsuccessful, or that the person would probably experience a repeated health crisis resulting in death. A DNR must be on hand everywhere the patient goes so that emergency responders can be read and honor it.

Indiana law provides that even if a person does not appoint a health care representative, a person’s guardian, spouse, parent, adult child, or adult sibling may make health care decisions for the person. The problem is that the statute does not prioritize one person over another. Schaivo-style fights sometimes trigger tragic litigation in the courts. Generally speaking almost everyone can expect better care in end of life choices if they plan ahead before health crises strike and appoint health care representatives.

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