DELEGATING HEALTH CARE DECISION MAKING

By: Sarah Lane

(6/1/03)

One of the strongest messages we send in our weekly articles is that planning your estate means planning for events that occur during your lifetime as well as upon your death. This article will examine how you can communicate to your loved ones and your physicians what your wishes are regarding health care in the event you are temporarily or permanently unable to make those decisions.

What happens if you do not leave instructions regarding the health care decisions you want made in the event you are unable to make them? What if you are incapacitated and have a terminal condition from which you are certain to not awaken or recover? Is it sufficient to tell a family member or must your instructions be in writing? Is there any particular form these documents must take or statements that are required to be made?

In the event that you become incapacitated but your physical condition is such that you may recover, you will likely want to delegate to a family member or close friend the right to make decisions regarding your medical care. These people know you best and have the best understanding of what your treatment wishes would be if you were able to make them for yourself, taking into consideration such factors as your moral or religious beliefs, your personal preferences, prior experiences and financial resources. Your doctor will have the authority to make treatment decisions under these circumstances unless you authorize someone else in a Durable Medical Power of Attorney. This document is similar to and can be incorporated within or executed separately from the traditional Durable Power of Attorney, which has historically dealt primarily with the management of property.

The powers you grant under this specialized Power of Attorney can be as broad or as narrow as you wish. For example, a specific instruction might state that you prefer to be treated in your own home as opposed to in an institution and instruct that all reasonable measures be taken to permit you to remain in your home until your medical recovery is inhibited as a result without regard to the cost of comparable institutional care. A much more general instruction might state that you grant to the named individual the right to make any decision with regard to matters regarding your health that you could make if present and capable of making an informed decision. Because your medical records are protected by privacy laws as well as the policies of each specific institution, consider granting the right to access your medical records to the person you have conferred decision making powers to ensure that they are able to make fully informed decisions based on all available information.

All Powers of Attorney must be witnessed and notarized. Additionally, to have the desired effect, it should include a statement that it is intended to be "durable," meaning that its effectiveness shall continue despite subsequent disability or incapacity. This power of attorney is fully revocable, giving you the flexibility to revoke or modify it at any time.

In the event you are permanently incapacitated and in a physical condition from which you will not recover even with the assistance of medical technology, there may be a point at which you want life support discontinued. This decision cannot be delegated by a power of attorney. Therefore, to communicate your wishes regarding the maintenance or discontinuation of medical assistance that will merely prolong the process of dying, you must give specific instructions through an Advance Directive for Health Care also known as a "Living Will".

The form that your Advance Directive must take is provided in its entirety by Oklahoma's state statutes and sets forth very narrow circumstances where, if you so choose, you may instruct your health care provider to withdraw medical assistance when two licensed physicians determine that you are "persistently unconscious" and have a "terminal illness" and that medical assistance being rendered will merely prolong the process of dying. Your Advance Directive also allows you to designate your preference regarding organ donation.

Additionally, the statutory form permits you to name a friend or family member, referred to as your "Health Care Proxy" to whom you may delegate the authority to make decisions regarding life sustaining treatment, and whose decision should govern in the event that your physician and your Health Care Proxy disagree. Each election requires a separate signature, and the entire document requires two witnesses.

Exceptions to effectiveness of an Advance Directive.

Advance Directives are not effective if the patient is known to be pregnant. Furthermore, physicians acting under an Advance Directive of a woman of childbearing age may have a duty to determine that the patient is not pregnant before withdrawing life support pursuant to an Advance Directive.

You should provide your primary care physician with a copy of both your Medical Power of Attorney as well as your Advance Directive for Health care. You should also discuss your elections with the friends or family members named as your Health Care Proxy and Attorney-in-Fact, and provide them with a copy of these documents.

People of all ages and walks of life should consider executing a Medical Power of Attorney and Advance Directive, not just the ill or the elderly. In the event that you are in an accident, these documents will allow your family to ensure that your wishes are known and followed.

© Sarah Lane 2003

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