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Do you need health care proxy, comfort care (DNR),
durable powers of attorney?
By Deborah L. Marchand, Elder Law Project Attorney
Yes, you probably will need all these documents to ensure your wishes will be respected and carried out by others at critical times. They can be completed by any adult who has not been found incompetent by a court of law and who understands the significance of what he or she is signing. Having these documents in place should mean that you receive the medical care you want, that someone can handle your business and financial matters when you are ready to have them do so, and, hopefully, may also help avoid the need for costly conservatorship or guardianship court proceedings in the future. This article describes health care proxies, comfort care order forms and durable powers of attorney to help you decide if you need any or all of them.
Advance directive
The term advance directive refers to a variety of written documents, which allow people to express their wishes as to how they want health care, financial, and other personal decisions to be made and/or to designate a specific person to make those decisions for them. Every state has its own set of laws governing these types of documents. These laws give the documents their legal significance. They cover the extent and types of powers which can be granted to others and may require that specific forms be used. Not all documents are valid in every state, and not every state will honor another state’s documents. You should be aware that written materials that are directed and distributed to a national audience may contain information about advance directives that may not apply to Massachusetts residents.
Living will
Such is the case with living wills. A living will is a document that sets forth instructions describing which medical procedures you would want performed—or not—if you became seriously ill and were unable to tell your doctor yourself. Although living wills are frequently mentioned as helpful tools, you should know that they are not authorized by Massachusetts law, and therefore are not legally binding. Some people choose to have a living will anyway believing that it is a written indication of their preferences, or because they do not have someone they trust to act as a health care proxy. However, since there is no way to predict what health problems might arise or what improvements in medical care might develop, those documents can become lengthy, cumber-some, quickly out of date, and subject to contradictory interpretations.
Health Care Proxy
In 1990 Massachusetts chose to authorize the use of health care proxy rather than living wills. A health care proxy is a document that permits you (the principal) to appoint a person that you know and trust to act as your health care agent. Before you name someone to act for you in this way, it is very important that you explain clearly to that person when you would decide to accept medical care. This person should make decisions using your criteria if you become unable to make decisions or communicate. The agent should act only after your health care providers have determined that you lack the ability to do so. The agent should gather as much information as possible before making decisions. Also, the agent can make decisions about day-to-day care options as necessary (such information is often not included in living wills.) Some people try to add “living will” type language to their proxy, but such language might be taken as limiting the powers of the agent and often leads to confusion. Our health care proxy allows for far more flexibility, is simpler in form and language, and is binding in Massachusetts on health care providers.
There are some important things to keep in mind. You do not have to sign a health care proxy document although health care providers are required to tell you about them, and they usually have proper forms readily available. You do not have to have a lawyer to do the form for you, just be sure your form follows the Massachusetts requirements. Forms provided by your doctor or hospital should do so. You may think it is enough to just tell your doctor your wishes, but it is better to have this information in writing, because that doctor may not be the one treating you. If your condition changes and you are again able to communicate, your wishes will override the proxy’s decisions. As long as you are competent and can communicate, you can revoke the document and do a new one at any time.
A health care proxy is not the same as a “don’t treat” document. It can ensure that your doctors know you do not want extraordinary efforts made since the agent will tell them. On the other hand, if you have chosen your agent well and have been clear about wanting all possible treatments pursued, that’s what your agent will tell your doctors. Finally, it is important to remember that this document will be of little help if the people treating you do not know you have one or do not have a copy of yours. So, be sure all your health care team has copies, and that the agent has copies to bring to hospitals and other facilities in case of emergencies.
Comfort Care Verification Form
The comfort care verification form is not the same as a heath care proxy. It has a very different and more narrow purpose — to provide emergency medical services (EMS) personnel with a clear and visible way to verify that someone has a valid “Do Not Resuscitate” (DNR) order. The Massachusetts Department of Public Health through the Office of Emergency Medical Services (OEMS) developed a protocol for obtaining, displaying, and honoring a person’s choice not to have cardiopulmonary resuscitation in an emergency situation outside a hospital setting. In such a situation, the EMS crew will provide only comfort care for a person with a valid DNR order when — and only when — they can readily verify the existence of the DNR order through viewing the special required verification form or observing the required bracelet being worn by the patient. This “Comfort Care Do Not Resuscitate Verification Protocol” is set out in detail at the OEMS website: http:// www.state.ma.us/dph/oems
When an ambulance with EMS personnel is called to a medical emergency, their duty is to do everything within their skills to save someone’s life. While they respect and recognize a patient’s right to determine his/her own treatment, it is often extremely difficult for a patient to communicate in the middle of a medical crisis. Even if the patient has a health care proxy, critical treatment might not wait while efforts are made to reach that person. The DNR was designed to alleviate potential confusion for the patient, the family, and the EMS crew. You cannot put detailed specific instructions in this form in the way that you might include them in your health care proxy. The form is designed only to verify your DNR order.
Before deciding whether you want to apply for a comfort care DNR verification form, you need to decide if a DNR order itself is right for you. After all, the comfort care form and bracelet are designed to verify your DNR decision; they are not designed to be a substitute for the DNR order. If you are trying to decide if a DNR order is right for you, you should discuss it with your health care team to be sure you under-stand exactly what it could mean for you with your particular health concerns. Once you feel informed about the medical aspects of a DNR, you should then discuss it with those you trust such as your partner, family, or closest friends. It is especially important that you explain your decision to the person you have designated as your health care agent. Letting those you love know your decision beforehand can help minimize arguments and distress in the middle of the emergency.
You complete the comfort care form with your health care professional. He/she can obtain the complete packet of information from the Office of Emergency Medical Services. These forms are not available anywhere else. The doctor (or physician’s assistant or nurse practitioner) states on the form that you have a current and valid DNR order. There are sections for both of you to fill-in and sign. You need to wear the bracelet and display the original completed form in a prominent place where the EMS crew would be most likely to find it. If your bracelet and/or comfort care form are not readily seen by the EMS crew, they are required to resuscitate. Copies of the form will not be accepted so if you spend a lot of time in more than one place, you will need to do an original form for each place.
The comfort care form does not expire unless a specific expiration date is set out on your DNR order. You can revoke the comfort care form at any time by physically destroying the form and bracelet, asking someone to destroy them for you, or directly asking the EMS crew to resuscitate you during an emergency. Again, it is very important to let the person you have chosen as your health care agent know about your DNR order and your comfort care form. If your health care agent tells EMS personnel something contrary to the comfort care order, the validity of your comfort care request is called into question, and the EMS crew will be required to resuscitate.
Durable Power of Attorney
Another type of advance directive is used to ensure that someone you have designated can make financial and/or other personal decisions for you if you become incompetent. You must be of sound mind when you execute this document, which can be drafted as narrowly or as broadly necessary for your circumstances. It need not he filed with any state agency, but you should make several original signed copies for yourself, your agent, and other important institutions, such as your bank. A traditional power of attorney document gives another person (your agent) the power to do certain specific acts (such as sell or transfer real or personal property, transfer money, cash in stocks, apply for government benefits. etc.) for you (the principal.) It automatically ends when you become incompetent. A durable power of attorney gives similar powers to the person you designate but it does not end when you become incompetent, because it must specifically contain words that indicate the power of attorney is not affected by the subsequent disability or incapacity of the principal. It does however, end at the death of the principal. By giving someone else the power now to make decisions on your behalf, you are not giving up your right to continue to make your own decisions as long as you are capable. Unless you specify some future date or you add language such as “upon determination of my incapacity,” the power will take effect immediately. The person you designate to act for you must act in your best interests and is accountable for handling of your funds. A durable power of attorney can be revoked at any time; it is best to do so in writing on the document itself and then sign and date the revocation.
Finally, you may have heard about a durable power of attorney for health care. However, such a document was not specifically authorized by our laws and may not have a binding effect. It is generally accepted that it is better to do a health care proxy for health matters and a durable power of attorney for financial and/or personal matters. Although the same person serves in both roles, it is often the case that someone’s personal relationship or knowledge of medical care would suit that person being the proxy while someone else might have particular skills with money management and thus hold the power of attorney.
By using all the tools available under Massachusetts law, you can have a good measure of control over important events in the future by preparing now, while you are competent. If you take the time now to discuss options with trusted family, friends, and professionals, and to choose an agent or agents, it will go a long way toward avoiding future problems at critical times.
This information is provided as a general introduction to this subject matter. You are advised to contact your health care provider, attorney or Western Mass Legal Services (WMLS) Elder Law Project (413-499-1950; 413-664-4531; 1-800-639-1509) to obtain more specific information and assistance with completing the forms discussed in this article. WMLS Elder Law Project has received a grant from Elder Services in each of past the several years