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Advanced Directives – When Individuals Cannot Speak To Their Own Healthcare Decisions

October 31, 2002

Terminally ill people often add advanced directives to their Health Proxies to inform medical personnel what kind of care they want. Since Living Wills are not statutorily recognized in Massachusetts, depending on one’s personal desires, Do Not Resuscitate (DNR,) and Do Not Intubate, (DNI,) documents are an extremely important part of an individual’s Health Proxy in the Commonwealth of Massachusetts. These documents speak when one is incapable of voicing his/her own wishes and they ensure that no extraordinary life saving measures be taken to prolong life when a certain quality of life cannot be assured. The degree of quality of life acceptable to an individual is a personal issue, so it is best to be considered by each of us on our own.

It is important to understand that CPR can be withheld under only two circumstances, when CPR is judged to be of no medical benefit, and when an individual with intact decision-making capacity, or someone designated as their decision maker, clearly indicates that they do not want CPR. The first circumstance is determined when it is concluded that there is no clinical benefit to CPR. The second circumstance is dependent upon a previous decision by the patient.

These issues become complicated when tragedy strikes for a healthy person who does not have a Health Proxy. Without advanced directives to guide medical personnel, it is mandated that all possible means be taken to preserve life. In emergency situations, medical personnel must assume that the individual wants to stay alive regardless of the circumstances. Medical personnel then look to family members for guidance, and steps must be taken to appoint a guardian who will assume decision-making responsibility.

A Doctor must consult with available family members to inform them of the likelihood of recovery, death, survival and expected quality of life. The law recognizes a hierarchy of family members in determining which family member should be designated the official spokesman. First is a legal guardian responsible for health care decisions, next is someone designated in a Health Proxy, followed by a spouse, then adult children, (all in agreement) parents, and finally adult siblings (all in agreement). Usually all close family members and significant others should be available to voice their concerns and attempt to reach a consensus. At this time, when no advance directive is in place, the doctor typically recommends guardianship to the family, then he or she must file a statement that harm will come to the individual if certain life saving techniques are initiated. Family members must then petition the court for guardianship status and provide the appropriate medical documentation as prepared by the physician.

To prevent a circumstance in which family members are forced to petition the court for guardianship, it is important for everyone to consider establishing a Health Proxy. This document ensures that individual wishes be followed at a time when he or she is unable to communicate them and when family members are most stressed. Since quality of life issues, and unique personal circumstances, (i.e. a woman may add language that she wishes to remain on life support to sustain a fetus,) are considered upon drafting the document, emotional family members are alleviated of making a decision that will weigh heavily on them. It is recommended that the individual designated to make health care decisions have a copy of the Health Proxy as well as the local hospital.

It is important to note that advance directives are often disregarded in trauma situations and in emergency rooms. Logically, the first priority of medical personnel is to sustain life. An option to address this issue would be to wear a medical bracelet that would allow a paramedic to honor a desire not to have CPR performed.

The circumstances under which an individual wishes to be resuscitated or intubated are best determined on a personal level. Advance directives are an important addition to a Health Proxy. Not only will they ensure that one’s wishes will be followed with respect to their health care decisions, but they take the pressure off emotional family members who are under tremendous stress, so they do not have to make painful decisions. As Living Wills are not statutorily recognized in the Commonwealth of Massachusetts, Health Proxies are the key to retaining control of one’s life and health care decisions at a time when it is difficult or impossible to communicate them.

Julie A. Dialessi, Esquire
Bacon & Wilson, P.C.
Julie is a multi-faceted business and estate planning lawyer with experience in all aspects of estate planning, corporate, business, real estate and general legal matters.

by: Julie A. Dialessi-Lafley, Esq.

Healthcare News
November 2002