Wednesday, November 9, 2011

Advanced Health Care Planning

Overview of Health Care Planning

Over the years, it has become increasingly difficult for loved ones to access medical records, make medical decisions and advocate for patients without authorization.  Due to the passage of the "HIPAA" (the Health Insurance Portability and Accountability Act of 1996) and other health care laws and regulations, individuals must plan ahead to ensure that their health care wishes are followed.  While laws like HIPAA protect our privacy, as well as prevent fraud and abuse, they also result in practical problems for family members when you do not plan ahead.

In addition, you may have specific family dynamics that will make it difficult for decisions to be made in emergencies or end-of-life situations.  Planning ahead can avoid disputes between family members and will also give you peace of mind that the right people are making the decisions that are consistent with your wishes.

Maine law allows you the right to accept or decline different forms of medical care, including the right to withhold artificial life support.  Under the Uniform Health Care Decisions Act (18-A M.R.S.A. §5-801 to §5-818), you have the right to make numerous decisions about how you will be treated and to appoint individuals who can make decisions in the event of your incapacity.

In this article, I will lay out the various medical directives that you can make in advanced health care planning.  These directives can make the most difficult decisions, at the most difficult times, easier for you and your loved ones.

The Advanced Health Care Directive

Naming an Agent:

One of the most important decisions that you can make ahead of time is who will make medical decisions for you in the event that you become incapacitated.  This could be a result of any number of events including accidents, the effects of medication, dementia and mental impairments.  Your agent is authorized not only to make decisions, but to access your medical records and speak with your doctors about your medical care.

In most directives, you may indicate several agents to serve in the order that you direct.  For example, you may name your spouse as your primary agent, your oldest child as your second agent and your youngest as your third agent.  In the event that one is incapacitated or unavailable, the next in line may make decisions.

Furthermore, you may direct when your agents' authorities will become effective.  You may direct that their decision-making take effect immediately or on some later date.  Many individuals prefer to indicate that their agents' authority becomes effective when the treating physician certifies in writing that the individual lacks capacity to make decisions.

End of Life Decisions:

Most health care directives will allow you to make decisions about your care in the event you are in a terminal condition, irreversible coma or other persistent vegetative state.  It is important to look at the definition of what condition you must be in prior to these decisions taking effect.  Some directives have more broad definitions and some are more detailed.  

In the event you are in one of those conditions, most directives allow you to make decisions about the following:

  • whether or not you prefer to be kept on artificial life support (e.g. ventilators, breathing machines, defibrollators, heart beat stimulators, drugs to stimulate heart and lungs, etc.);
  • the withdrawal of artificial nutrition or hydration (e.g. intravenous feeding, tube feeding, misting, etc.);
  • whether or not to have pain relief even if it hastens your death; and
  • whether or not you consent to your doctors signing a "do not resuscitate" order in the event you are in one of the pre-defined conditions.

Do Not Resuscitate (DNR) Orders

A DNR order is a direction given by a physician who authorizes first responders or any other medical personnel to refrain from administering any medical treatment or extraordinary measures to revive you.  These orders are most common with patients who are terminal or in vegetative states.  It is important to note that no one else can write a DNR order, except your physician.  

Organ Donation

Many of you know that you can identify yourself as an organ donor by obtaining a sticker for your identification card.  However, many of you probably do not know that you can identify organ, tissue and part donation wishes in your advanced health care directive.  You can also specify which organs, tissues and parts that you intend to donate and for what purpose (e.g. transplant, therapy, research and education).

Designation of Primary Physician

One of the benefits to identifying your primary physician is that you can deliver your advanced health care directive to him or her.  This will allow them to put the directive in your medical records, which are generally available country-wide to health care professionals. 

Disqualifying Certain Surrogates

In the event that you do not have a health care directive, Maine identifies certain individuals who have priority to serve as your health care "surrogate" (Title 18-A M.R.S.A. § 5-805).  If you click on the link, you will see that there is a priority of family members and friends that are permitted to make medical decisions for you in the event of your incapacity if there are no agents or guardians named.  In most directives, you can identify if there are any individuals who you do not wish to make these decisions under any circumstances if your agents cannot be located.  For example, you may have a child who has estranged himself or herself from your family and you do not want them to cause problems for you if you become incapacitated.

Instructions for Funeral and Burial Arrangements

While it is difficult for most to contemplate their funeral arrangements, identifying your wishes in a document may ensure your peace of mind.  Many individuals may verbally explain their wishes to their spouse or a child.  However, what happens if that spouse or child predecease the individual?  Having your funeral wishes in writing, in whatever detail you prefer, may be the only way to ensure that your affairs are handled as you intended.

Your Medical Providers' Responsibilities

Maine law requires that your medical providers comply with your decisions and make your records available to your agents or surrogates (Title 18-A M.R.S.A. Section 5-807 through 5-809).  They must verify your medical decisions with you, promptly record your information about the existence or revocation of your directives and comply with your instructions or your agent's instructions.  

Section 5-809 provides protections and immunities for your health care agents, surrogates and medical providers who act in good faith to carry out your wishes.  In an effort to assure that your wishes are honored, the statute even provides for damage awards against medical providers that intentionally violate the statute's requirements.  

Drafting and Executing An Advanced Health Care Directive

Maine has published a statutory form that is available at most hospitals and doctors offices.  It is also available online here (Click on "here" to go to link).  This is only a suggested form and you are free to draft your own.  Many law offices are using more detailed forms and you may feel more comfortable executing these.  

I am happy to assist you in making these difficult decisions and ensure that your wishes are honored.  If you need assistance preparing and executing your Advanced Health Care Directive, please do not hesitate to contact me.  Our phone number is 207-743-6351 and my email address is  

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