Health Care Powers of Attorney
END OF LIFE DECISIONS
(Health Care Power of Attorney, POLST, etc.)
Your Will contains your instructions for the distribution of your possessions after your death. More important are your instructions about your medical treatment when you can no longer make decisions for yourself. There are two important documents which you may use well ahead of time for this type of planning—a Health Care Power of Attorney and a Health Care Directive.
In a Health Care Power of Attorney you designate someone to be in charge of making decisions about your health care if you are incapacitated. You should make sure that your Health Care Power of Attorney conforms with the federal HIPAA statute so that it clearly allows your health care providers to release information to your health care power of attorney.
In a Health Care Directive (sometimes called a living will) you provide that if you are terminally ill or are in a permanent unconscious state you wish to die a natural death without being kept alive by artificial means. You need to sign the directive in the presence of two witnesses. The witnesses cannot be entitled to your estate or anyone related to you by blood or marriage, nor can they be your physician or an employee of your physician or your health facility. The legislature has set out a sample Health Care Directive at RCW 70.122.030. http://apps.leg.wa.gov/rcw/default.aspx?cite=70.122.030
You should give a copy of the directive to your physician for inclusion in your medical records. Some of the difficult questions that you will be called on to answer in your Health Care Directive are whether, if you are in a terminal or permanent unconscious condition, you want artificially provided nutrition and/or hydration. This is an important issue to talk to your physician about since different physicians make different recommendations.
As an estate planning attorney, the different documents I prepare for clients can seem abstract. That changed dramatically for me a few years ago when I received a call from the hospital emergency room at 11:00 at night. I had agreed to be the Health Care Power of Attorney for a close friend. She was single and in her late 30’s so the issue seemed very remote and I did not think twice when I agreed to do it. However, when the call came from the emergency room that she was there, unconscious, with a brain aneurysm, the document was no longer something abstract I had studied in law school.
By agreeing to be her Health Care Power of Attorney, I was now involved in life and death decision making. Without the Health Care Power of Attorney I would have had no authority to talk to her doctor. With the Health Care Power of Attorney the doctor was able to get my authority to perform the testing needed and she had me there evaluating the pros and cons of different treatment options. I certainly witnessed how in a crisis it is extremely beneficial for the doctor to have someone clearly designated that the doctor can take instructions from. Fortunately my friend, who made a full recovery, did not need to use the second document, the Health Care Directive.
A third document, which you get from your physician, rather than your attorney, is a Physician’s Orders for Life Sustaining Treatment (POLST), which details your preferences for resuscitation, comfort care and treatment. While you should sign your Health Care Power of Attorney and your Health Care Directive well before a medical crisis, the POLST is something you obtain from your doctor toward the end of your life when the specifics of your situation are clearer.
Once you have thought your way through your wishes and have written them out, how can you make sure your health care provider will know your wishes in an emergency? You may want to register your Health Care Directive, your Health Care Durable Power of Attorney and/or your POLST with the Washington State Department of Health so that your health care documents will be accessible to your doctor. You may also register you emergency contact information so that your family can be contacted. You can contact the Washington State Department of Health at (360) 236-4365 or go online at www.doh.wa.gov/livingwill/ to register.
On March 5, 2009, Washington’s “Death with Dignity” Act became law. This law permits a doctor to prescribe life-ending medicine to a Washington resident. The patient must have an incurable and irreversible disease and only six months to live. There are a number of steps that the doctor and the patient must go through before the doctor can write the prescription. Anyone who needs more information on this law should talk with their doctor.
A final issue to consider is whether you wish to be an organ donor. In Washington the ways for you to become an organ donor are as follows:
- Add your name to the registry on the organ donor website at http://www.donatelifetoday.com.
- Mail a letter with your name and address to the organ donor registry at:
Attn: Living Legacy Foundation
11245 SE 6th Street, Ste 100
Bellevue, WA 98004
- Call Living Legacy Foundation at 1 (877) 275-5269
- Designate yourself as an organ donor on your driver’s license or ID card at the Washington Department of Licensing (DOL).
In my practice I have more meetings than I can count with clients whose parents have done no planning and a health disaster has struck. What is already a sad situation, fraught with worry, is made ten times worse because the parents have not put their legal affairs in order ahead of time.
For all of us, making decisions about what we want at the end of our life is difficult. However, if you put instructions in place ahead of time, before things are in turmoil, you can make a medical crisis much less stressful for your family.
Elizabeth A. Perry, a member of the National Academy of Elder Law Attorneys, has been helping Clark County residents with their estate planning needs for over 20 years. Her practice emphasizes wills, trusts, probate and Medicaid planning. You are invited to call her to schedule an appointment or sign up for a class at (360) 816-2485.
(The above should not be construed as specific legal advice and is intended for general information purposes only)