Why Is The Usual Wording Found In Advance Directives Antiquated? It’s Probably Due To The Typical Boiler Plate Language Most Often Used.
The January 6, 2022 Opinion Page of the New York Times featured a thought-provoking article by Daniela J. Lamas, a pulmonary and critical-care physician at Brigham and Women’s Hospital in Boston. It is titled: A Better Way to Face Death and it deals with the issue of “Do Advance Directives by healthy people actually deliver better care?”
The article discusses the heart-wrenching decisions which need to be made when a proposed life-sustaining procedure contradicts the patient’s expressed wishes pursuant to an advance directive.
Having prepared countless advance directives on behalf of clients and with the hindsight of many discussions pertaining to these documents, I would offer the following thoughts: The problem raised by Dr. Lamas is probably due to the following, or similar, language which (unfortunately) appears in most forms of Advance Directives:
These are my wishes for my future medical care if there ever comes a time when I can’t make these decisions for myself.
A. These are my wishes if I have a terminal condition Life-sustaining treatments:
_____ I do not want life-sustaining treatment (including CPR) started. If life-sustaining treatments are started, I want them stopped.
_____ I want the life-sustaining treatments that my doctors think are best for me.
Other wishes: (fill in the blank)
Artificial nutrition and hydration:
_____ I do not want artificial nutrition and hydration started if they would be the main treatments keeping me alive. If artificial nutrition and hydration are started, I want them stopped.
_____ I want artificial nutrition and hydration even if they are the main treatments keeping me alive.
Other wishes: (fill in the blank)
Comfort care:
_____ I want to be kept as comfortable and free of pain as possible, even if such care prolongs my dying or shortens my life.
Other wishes: (fill in the blank)
B. These are my wishes if I am ever in a persistent vegetative state Life-sustaining treatments:
_____ I do not want life-sustaining treatments (including CPR) started. If life-sustaining treatments are started, I want them stopped.
_____ I want the life-sustaining treatments that my doctors think are best for me.
Other wishes: (fill in the blank)
Artificial nutrition and hydration:
_____ I do not want artificial nutrition and hydration started if they would be the main treatments keeping me alive. If artificial nutrition and hydration are started, I want them stopped.
_____ I want artificial nutrition and hydration even if they are the main treatments keeping me alive.
Other wishes: (fill in the blank)
Comfort care:
_____ I want to be kept as comfortable and free of pain as possible, even if such care prolongs my dying or shortens my life.
Other wishes: (fill in the blank)
C. Other directions:
You have the right to be involved in all decisions about your medical care, even those not dealing with terminal conditions or persistent vegetative states. If you have wishes not covered in other parts of this document, please indicate them below.
Expecting a person in their 30’s or 50’s or even over 60 to be able to predict their future medical circumstances, let alone know the frame of mind in which they would be regarding so-called “end of life” care decisions, is an irrational exercise. The case described by Dr. Lamas of the 60-year-old woman whose advance directive instructed that she should not be intubated, having sustained a traumatic hospitalization when she was young, proves my point.
The forms of advance directives, also included in the health care powers of appointment which we prepare on behalf of clients let the physicians (and family) know that philosophically, at the end of life, the client does not want to be violated by heroic measures which would only prolong life for “a short time.” This assures the medical community that no lawsuit (e.g. the case of Terry Schiavo or Karen Ann Quinlan) will ensue if the physician fails to use every available possible means of prolonging one’s life, such as heart resuscitation or even intubation.
Here is the general language we propose for our clients’ consideration when preparing their advance directives:
If at any time I should be diagnosed as having an incurable and irreversible illness, disease or condition, and my attending physician and at least one other physician who has personally examined me determine that my condition is terminal, I direct that life-sustaining treatment which would serve only to artificially prolong my death be withheld and discontinued. I also direct that I be given only medically approved treatment and care necessary to keep me comfortable and to relieve pain. As used herein, “terminal condition” means that my physicians have determined that I will die within a short time.
If at any time I become permanently unconscious, and it is determined by my attending physician and at least one other physician with appropriate expertise who has personally examined me, that I have totally and irreversibly lost consciousness and my ability to interact with other people and my surroundings, I direct that life-sustaining treatment be withheld and discontinued and that I be given only medically approved treatment and care necessary to provide for my personal hygiene and dignity. As used herein, “permanently unconscious” means total and irreversible loss of consciousness and capacity for interaction with the environment and includes a persistent vegetative state and an irreversible coma.
I may become diagnosed as having an incurable or irreversible illness, disease or condition, which may not be terminal, but which causes me to experience severe and worsening physical or mental deterioration and/or a permanent loss of capacities and faculties I highly value. If, in the course of my medical care, the burdens of continued life with treatment become greater than the benefits I experience, I direct that life-sustaining treatment be withheld and discontinued and that I be given only medically appropriate care necessary to keep me comfortable and to relieve pain.
As used herein, “life-sustaining treatment” means the use of any medical device or procedure, including artificially provided fluids and nutrition, drugs, surgery or therapy, that uses mechanical or other artificial means to sustain, restore or supplant a vital bodily function, and thereby increases my life span. The procedures and treatment to be withheld and withdrawn include, without limitation, surgery, antibiotics, cardiopulmonary resuscitation, respiratory support, blood and blood products, dialysis, chemotherapy, radiation therapy, and invasive diagnostic tests. I expressly authorize the withholding and withdrawal of artificially provided food, water, and other nourishment and fluids.
If I have been diagnosed as pregnant and my physician knows of this diagnosis, this directive shall have no force or effect during the course of my pregnancy to the extent that the actions to be taken pursuant to this directive would adversely affect the viability of the fetus.
By making this directive, I inform those who may become entrusted with my care of my wishes and intend to ease the burdens of decision-making which this responsibility may impose. I understand the purpose and effect of this directive and sign it knowingly, voluntarily and after careful deliberation.
Unfortunately, too often I was present at hospitals and at the bedsides of both relatives and friends during their last hours of life. Practically speaking, based on my observation and that of others, typically the only inquiry by attending physicians is “does the patient have a living will?” Although the document is generally included in the patient’s chart, its specific instructions are not likely to be scrutinized. At such times, the medical staff and family, having the patient’s best interests at heart, will strive to keep the patient as comfortable as possible and often pray for the inevitability of death to ensue sooner rather than later. It is certainly possible that there will be cases where the family insists on last-minute heroic, yet medically futile, interventions.
It is therefore important both for doctors’ protection from lawsuits and especially for the peace of mind of loved ones who may be inclined to insist on miraculous recoveries that everyone has a Living Will. We recommend our clients sign the generic (as opposed to specific) forms of Advance Directives (as well as Health Care Powers of Attorney) to provide needed reassurance and hopefully prevent controversy or confusion at the most stressful of times.
You can learn more on our page WILLS AND ESTATE PLANNING | IMPORTANT REASONS TO CONSIDER AN ESTATE PLAN. Or feel free to call me directly at Taenzer & Ettenson, P.C. (856.235.1234) for a free consultation. Or you may click here to use our contact form.
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