Legal Aspects of End-of-Life Care

By Brenda D. Colbert, Esq, and Kevin Grebas, Esq

Patients have the right to make their own medical decisions, including the right to refuse medical treatments or withdraw consent to treatment once begun.

Advanced healthcare decision making is an integral part of estate and incapacity planning to ensure that healthcare decisions will be consistent with a patient’s philosophy, values, and wishes. The foundation of healthcare decision making lies in a patient’s right to informed consent; every individual has the right to make his or her own medical decisions, including the right to refuse medical treatments or withdraw consent to treatment once begun. This right to self-determination does not end with a patient’s incapacity. An advance healthcare directive, which is the term used to describe a healthcare power of attorney, living will, or written combination of the two, can ensure that a patient’s wishes are respected after incapacity.

For a valid document, the principal (person executing the document) must be an adult of sound mind at the time the advance healthcare directive is executed. It must be dated and signed by the principal either by signature or mark or by another individual at the principal’s direction. A healthcare provider may not sign an advance healthcare directive at the principal’s direction if he or she provides healthcare services to the individual. Unless related to the principal by blood, marriage, or adoption, an agent of the principal may not serve as the principal’s attending physician or other healthcare provider or an owner, operator, or employee of a healthcare provider where the principal is receiving care.

Physicians should recognize the steps patients can take to ensure their end-of-life care wishes are honored during medical treatments. Suggesting that patients seek legal documentation of their care and treatment wishes removes doubts or burdens from spouses and family members in some situations.

Healthcare Power of Attorney
The healthcare power of attorney is a document that allows the principal to appoint an agent to make health and personal care decisions on the principal’s behalf. Decisions are made in accordance with specific instructions provided by the principal pertaining to what choices the agent may make, when the agent may make those choices, and how the agent may make those choices. Healthcare decisions made by an agent are effective without court approval.

The healthcare power of attorney must, at a minimum, identify the principal, appoint the agent, and authorize the agent to make healthcare decisions on behalf of the principal. It may describe any limitations that the principal may wish to impose on the agent’s authority; indicate the principal’s wishes regarding the initiation, continuation, withholding, or withdrawal of life-sustaining treatments, specifically in regard to any forms of artificial or invasive nutrition or hydration; and contain any other provisions regarding the implementation of healthcare decisions.

It does not become operative until a copy is provided to the principal’s attending physician, and the principal is deemed incompetent. Incompetency, for these purposes, is defined by statute as a condition in which an individual, despite being provided appropriate medical information, communication supports, and technical assistance, cannot understand the potential material benefits, risks, and alternatives involved in a specific proposed healthcare decision, make that healthcare decision, or communicate that healthcare decision to another person. The term is intended to permit individuals to be found incompetent to make some healthcare decisions but competent to make others.

The agent is authorized to make decisions regarding the principal’s care, custody, and healthcare treatments that the principal could have made and exercised if he or she were competent. This authority may extend beyond the principal’s death for the purposes of making anatomical gifts, disposing of remains, and consenting to autopsies.

The agent is obligated to consult with the principal’s healthcare providers and base decisions in the following order of priority: in accordance with the agent’s understanding and interpretation of the principal’s instructions, in conformity with the agent’s assessment of the principal’s preferences and values, and in accordance with the agent’s assessment of the principal’s best interests.

The principal, if competent, may countermand medical decisions made by the agent but need not be of sound mind to countermand the agent’s decisions that would withhold or withdraw life-sustaining treatments. The principal must be competent to amend or revoke a healthcare power of attorney. An amendment must be in writing, but a revocation need not be in writing.

Living Will
A living will expresses a principal’s wishes regarding life-sustaining treatments and instructions for his or her healthcare. The statute defines a life-sustaining treatment as any medical procedure or intervention that, when administered to a patient who has an end-stage medical condition or is permanently unconscious, will serve only to prolong the process of dying or maintain the individual in a state of permanent unconsciousness, including when the advance healthcare directive specifically provides artificial nutrition and hydration.

An end-stage medical condition is defined as an incurable and irreversible medical condition in an advanced state that, to a reasonable degree of medical certainty, will result in death regardless of medical treatment. Permanently unconscious is defined as a total and irreversible loss of consciousness and capacity for interaction with the environment, including an irreversible vegetative state or irreversible coma.

A living will does not become operative until a copy is provided to the attending physician, and the attending physician has determined that the principal is incompetent and has an end-stage medical condition or is permanently unconscious. Thus, a living will does not take the place of a healthcare power of attorney, as it provides authority only over end-of-life decision making.

Healthcare providers are required by statute to act in accordance with the provisions of a living will or, if unable to do so, to transfer the patient to a healthcare provider who will do so. The provider may not make inferences as to a patient’s preferences regarding end-of-life care in the absence of a living will. When a living will is presented to a provider, it must be made a part of the patient’s medical record. Providers also have a duty to promptly certify when a patient is in an end-stage condition.

A living will may be revoked at any time by the principal by communicating the decision to do so to the attending physician, other healthcare provider, or a witness.

Healthcare Representative
A healthcare representative serves as a surrogate decision maker for an individual who cannot make medical decisions and has not executed an advance healthcare directive. The representative may make decisions on behalf of such an individual when an attending physician has determined that the individual is incompetent, does not have a healthcare power of attorney or the agent is unavailable, and a guardian for the individual has not been appointed.

An individual may orally appoint a healthcare representative. In the absence of such a declaration, a representative may be determined by statute in order of priority as follows: the patient’s spouse (and adult children if they are not children of the spouse), adult children, parent(s), adult sibling(s), adult grandchild(ren), and any adult with knowledge of the patient’s preferences. However, a healthcare provider may not serve as representative unless related to the incapacitated person by blood or marriage.

Once designated, the healthcare representative is authorized to make any healthcare decisions and exercise any right and power regarding the incapacitated person’s care, custody, and treatments that he or she could have made if competent.

If more than one healthcare representative is designated and disagreements arise, then such disagreements must be resolved within the class or by a majority within the class. The patient need not be of sound mind to countermand any decision made by the representative that would withhold or withdraw life-sustaining treatments but must be of sound mind to countermand medical decisions. The healthcare provider may require the proposed representative to provide a written declaration that sets forth the facts and circumstances that establish his or her authority to act as such.

If an incapacitated person has not executed a healthcare power of attorney and a healthcare representative cannot be designated, then a guardianship may need to be established on behalf of the incapacitated person. This provides a means of decision making for an individual who is unable to make his or her own decisions. It is a court proceeding in which a petitioner must prove the patient’s incapacity and that the petitioner is the best choice to serve as guardian.

Physician Orders
Advance healthcare directives go hand in hand with physician orders. The directive provides evidence of a patient’s care wishes that then can be made into a physician order to ensure that the patient’s wishes are respected.

Out-of-Hospital DNR Order
An out-of-hospital DNR (do not resuscitate) is an order issued by an attending physician directing emergency medical services providers to withhold CPR from a patient in the event of respiratory or cardiac arrest. An attending physician, at the request of a competent adult patient or an incapacitated patient’s surrogate, if the surrogate is so authorized, can issue to the patient an out-of-hospital DNR order. The patient may choose to wear a bracelet or necklace to notify emergency medical services providers of his or her DNR status.

If a patient has obtained an out-of-hospital DNR order, only the patient may revoke the DNR status. If a surrogate has obtained an out-of-hospital DNR order on behalf of an incapacitated person, the patient or the surrogate may revoke the status. Revocation may be done at any time without regard to a patient’s physical or mental condition and in any manner, including verbally or by destroying or not displaying the order, bracelet, or necklace.

POLST
POLST stands for Pennsylvania order for life-sustaining treatments, which is a physician order that documents a patient’s wishes concerning the type of medical treatments the patient would or would not want to receive when he or she has an end-stage medical condition or is in a state of permanent unconsciousness.

The Pennsylvania Department of Health approved a standardized POLST form in February 2011. However, POLST is more than just a form; it is a process to ensure that the patient understands end-of-life medical treatments, including the likely result when life-sustaining treatments are instituted and withheld or withdrawn.  The POLST process ensures that the patient’s wishes regarding end-of-life medical treatments are honored in all care settings. Other similar provisions are in place in other states.

— Brenda D. Colbert, Esq, practices elder law, estate planning, and special needs planning in northeastern Pennsylvania. Her affiliations include the POLST Task Force of NEPA and the NEPA Aging Networking Alliance.

— Kevin Grebaas, Esq is a founding partner of the Colbert & Grebas law firm. He is a member of the National Academy of Elder Law Attorneys, the Pennsylvania Association of Elder Law Attorneys, the NEPA Aging Networking Alliance, and the Senior Networking Alliances of Luzerne County.