An “advance medical directive” (also known as a “health care advance directive” or “instruction directive”) is a written statement made by the patient concerning future health care wishes. Advance directives consist of two parts: a “living will” and a “health care proxy” (a “health care power of attorney”). A living will is a document in which a patient provides direction regarding medical treatments that the patient wishes to accept or refuse under various circumstances. A health care proxy (“medical power of attorney”) is a document designating an agent (surrogate decision-maker) to act on the patient’s behalf with respect to medical decisions. (For interested readers, this blog contains numerous posts discussing Advance Medical Directives.)
If you are a health care proxy, you can make decisions and take actions that a patient would make or do, if able. This includes:
- Accessing the patient’s medical records and any information you need about the patient’s health or health care.
- Talking with the medical team about treatment choices. Ask questions and get explanations, so that you can understand the patient’s medical condition and treatment options as much as possible.
- Asking for consultations and second opinions from other doctors.
- Consenting to or refusing medical tests or treatments — including life- sustaining treatment in many, but not all, cases.
- Deciding whether to transfer the patient to another doctor or health care facility (such as a hospital or skilled nursing home).
- Getting the doctor and other medical professionals to communicate with the patient if he or she is still able to understand anything.
Unfortunately, only a minority of adults take the time to create an Advance Medical Directive, and they generally use standardized forms that don’t provide much useful clinical guidance. Even after completing a directive, a patient cannot be confident that it will be followed. Healthcare providers typically don’t know that the directive exists, or if they know, it’s not in the medical record or easily accessible in the record. Agents acting under a health-care power of attorney typically have inadequate knowledge of the principal’s goals and wishes and are too often unprepared to act as effective surrogate decision makers.
To become a more effective surrogate decision maker under a health care proxy (“medical power of attorney”) under an Advance Medical Directive, you should:
►Be aware of exactly what the Advance Medical Directive says because it should give you guidance on how to exercise your authority as a health care agent.
►Make sure the treating health care professionals and health care facility are aware of the Advance Medical Directive and have a copy.
►Try to learn as much as possible about what the patient would want if he or she were seriously ill.
Any health care proxy should have conversations about medical treatment options with the patient as soon as possible, BEFORE the proxy is called on to make medical decisions for the patient. This is one of the most important tasks you can undertake for the patient. You should ask what choices would be in line with the patient’s personality, religious beliefs, personal values, and past decisions. What fits with the person’s “life story”? How would that person want to live the final chapter of life? What is the person hoping for in his or her health treatment? Learn what is important to the patient in making health care decisions. This is important because the law in New Jersey and most states tells you to try to decide as the patient would, even if the decision goes against the way you would decide for yourself. You must be able to put yourself in the patient’s shoes and speak with the patient’s voice to the extent possible. And, don’t be afraid to talk about illness and dying. Although it’s difficult, it’s a lot harder making decisions without having a sense of what the person would want.
Although it is easier to make medical decisions for another if you have talked with the patient in advance as suggested above, whether you had such a conversation or not, you can use the following steps to help you make decisions on the patient’s behalf:
1. Find out the medical facts. This requires talking to the doctors and getting a complete picture of the situation. Questions you can use:
►What is the name of the patient’s condition?
►If you don’t know exactly what’s wrong, what are the possibilities?
►Are tests needed to know more? Will the outcome of more testing make any difference in how you treat the patient, or in how the patient wants to be treated? (If not, why do the test?)
►What is the purpose of each test? Do these tests have risks?
►Is the information you need worth the risk of the test?
►How do you explain the symptoms?
►How severe or advanced is this case?
►What do you think will be the likely course of this disease or condition?
2. Find out the options. Make sure the doctor describes the risks and benefits of each option. In comparing these options, ask:
►How will this option make the patient improve or feel better? Can this procedure be done on a trial basis first? What is a reasonable amount of time for a trial? Is the doctor willing to stop it after an agreed-upon trial?
►What defines “success” for this option? (It may not be what the patient would consider a success.) What is the success rate for people like the patient?
►What will it mean about the patient’s ability to do things and to communicate meaningfully with family and friends?
►If the patient is to die, how might it affect the circumstances of death? (For example, will it likely require hospitalization instead of home care?)
►What are the possible side effects?
►What option does the doctor recommend, and why?
3. Figure out how the patient would decide if he or she could.
►If you know what the patient would want, most states laws law say you should act on it. If the patient left written instructions, do your best to follow them.
►If you do not know the patient’s wishes for the specific decision at hand, you still might have a solid basis for figuring out how he or she would decide. Consider the patient’s values, religious beliefs, past decisions, and past statements. The aim is to choose as the patient would probably choose, even if it is not what you would choose for yourself.
4. If you just don’t know what the patient would do, choose the option that is in the patient’s best interest. If you have little or no information on what the patient would want, then your job under the law is to do what you believe to be best for the patient. In weighing the options, you should consider what a reasonable person in the same situation would decide.
(This blog post is adapted from information contained in a guide entitled Making Medical Decisions for Someone Else: A How-To Guide originally published by the American Bar Association Commission on Law and Aging. The ABA’s guide, which is excellent, can be found here: http://bit.ly/18uV8UA)
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