THE NEED FOR ADVANCE MEDICAL DIRECTIVES

Modern medicine is helping us live longer, healthier lives. Even critically injured people's lives can be prolonged for months and even years. Is there a point or circumstance where life sustaining treatment is no longer warranted or desired? Who decides, and when?

Doctors, patients and their families hospitals and nursing homes wrestle with these questions on a daily basis: Should all life be preserved, at all costs, in every instance? Is there a point at which the quality of life, chances for recovery/cure or burden on family/society overshadow the sanctity of life? There are significant economic, ethical and emotional considerations to these questions and they are almost always asked in the midst of medical and emotional crisis. There is no single universally agreed on answer. WHO DECIDES?

In Illinois, a competent, adult patient can generally control the types and amounts of health care he or she receives. Beyond that, the answer tends to depend on whether or not there has been any advance planning. A patient can prepare a living will or health care power of attorney appointing an agent to make decisions if he or she is no longer able. The directive can also tell the agent what the maker wants or does not want in regard to health care procedures. Without a written advance directive, a patients spouse or other "next of kin," a treating physician, and in some cases, the courts may have to decide.

Please note: Suicide, Assisted Suicide, and Euthanasia are all against the law in Illinois. These directives apply only to the use or withdrawal of medical care used to prolong life, not to deliberately ending it.

ADVANCE DIRECTIVES

LIVING WILLS

Living wills are written, witnessed declarations of the makers wishes in matters of death delaying procedures in instances of terminal conditions
A terminal condition is one that is incurable and irreversible and where death is imminent.

Death delaying procedures are those that merely postpone the moment of death. Depending on the circumstances, this might include assisted ventilation, artificial kidney treatments, intravenous feeding or medication, blood transfusions, or tube feeding.

A living will instruction to stop nourishment or hydration is unenforceable if it would result in death by starvation or dehydration rather than a terminal condition.

FEATURES OF A LIVING WILL:

• Can be prepared at any time, even before a terminal condition exists.
• Can also be revoked or revised at any time, by writing or by oral declaration and without regard to the patients mental status.
• Only becomes effective after a doctor certifies in writing that the patient's condition is terminal
• The doctor does not have to agree to the living will's terms but if not, must let the patient (or a family member/guardian) know so that the patient can find a different physician that will.
• Will be superceded by a health care power of attorney, provided that the health care agent is available to act.

HEALTH CARE POWER OF ATTORNEY

The Illinois "Short Form" Durable Power of Attorney operates like a living will but applies to all health care decisions, including the right to decline medical treatment or to direct that it be withdrawn, even if death ensues. This right overrides a doctor's obligation to render care or to preserve life and health.

A Power of Attorney is a written, witnessed declaration that names an "agent" to make health care decisions for the "maker" and allows for specific directions regarding the types of decisions that may be made, the circumstances for making decisions, and the maker's instructions or guidance for making such decisions.

FEATURES OF A HEALTH CARE POWER:

• Can be prepared at any time.
• Can also be revoked or revised at any time, by writing or by a witnessed oral statement, regardless of the maker's mental or physical condition
• Can be as general as simply naming an agent or as narrow in focus as the maker deems appropriate.
• Becomes effective at any time designated by the maker and remains effective until terminated, expired or the maker's death
• Can also be applied to making health care decisions for a minor child or other war
• May extend beyond the maker's death as necessary to permit anatomical gift, autopsy or disposition of remains.
• Is binding on health care providers, but a provider may refuse to comply, provided notice is given to the maker or agent and an opportunity to transfer care to another provider is allowed.
• Supersedes all other forms of advance directive.

A PHYSICIANS OBLIGATION

WHO DECIDES IF I DO NOT?

Health care decisions must be made whether or not a patient has written an advance directive. If there are no advance directives, Doctors and hospitals look to "Health Care Surrogates" for direction. Under the right circumstances, this allows a way where the patients' wishes may still control. Without a designated Health Care Surrogate, the decisions are left to the health care providers and the courts.

FIVE GUIDELINES TO EASE THE BURDEN ON YOUR LOVED ONES

1. Create Advance Directives, preferably a Health Care Power of attorney and perhaps a Living Will too.
2. Consult with a lawyer to make sure that you state your wishes clearly and completely. There is far too much at stake, and if any loved one holds a different opinion on these issues this is fertile ground for litigation
3. If you believe that your loved ones may hold differing views on these matters, consider appointing a trusted friend or more remote relative to be your agent.
4. Make your directive known to your family. They cannot respect or follow your wishes if you do not tell them what your wishes are.
5. Make your directive known to your doctor(s). Doctors are trained to preserve life and do not always want to follow patient directives on these matters. If your doctor does not know your views, she cannot honor them If he does not share your views and will not follow them, you will at least have time to find a doctor who will.

HEALTH CARE SURROGATES

A patient who fails to make an advance directive or who has and advance directive that does not cover a given health care decision still has a fundamental right to make decisions relating to his own medical treatment, including the right to forgo life-sustaining treatment.

The law establishes a hierarchy of persons who may be deemed the surrogate decision maker. The level of priority for a surrogate is based on general principals of family relation and closeness of friendship.

The law requires the surrogate decision maker to investigate what the patient "would have wanted" from all available evidence and to make decisions consistent with whatever is learned. If no evidence can be found of a patients wishes, the surrogate decision maker must use his or her best judgment. Given the emotional overlay of a health care crisis, this is a highly undesirable circumstance

If no one can be found to serve as health care surrogate, a court-appointed guardian may be designated to make these decisions.

LIMITATIONS OF A HEALTH CARE SURROGACY:

Health Care Surrogates can make decisions to forego life sustaining treatment only if the patient has a:

• "Terminal condition - an illness or injury for which there is no reasonable prospect of cure or recovery, death is imminent, and the application of life-sustaining treatment would only prolong the dying process.
• "Permanent unconsciousness" - that, to a high degree of medical certainty, (i) will last permanently, without improvement, (ii) in which thought, sensation, purposeful action, social interaction, and awareness of self and environment are absent, and (iii) for which initiating or continuing life-sustaining treatment provides only minimal medical benefit. or
• "Incurable or irreversible condition" - other illness or injury (i) for which there is no reasonable prospect of cure or recovery, (ii) that will ultimately cause death even if life-sustaining treatment is initiated or continued, (iii) imposes severe pain or an inhumane burden on the patient, and (iv) for which initiating or continuing life-sustaining treatment provides only minimal medical benefit.

Allows health care providers opportunity to "opt out" of situations where they do not agree with decisions made by the surrogate, provided they give notice to, and assist the surrogate in transferring care to other providers.

Allows a health care provider to delay a decision to stop life sustaining treatment if she believes the surrogate is not acting in accord with his responsibilities

Does not overcome federal statutes that mandate "appropriate" nutrition, hydration, and medication for neonates

Allows for the possibility of family members or certain others to seek a judicial review of health care decisions, including guardianship proceedings - which may delay or hinder or thwart the effectiveness of the surrogacy

Allows some patient the ability to object to some surrogates who wish to forgo life sustaining treatment, even if they lack "decisional capacity"