July 16, 2018

Advance Directives

A Safe Haven when Making Medical Decisions
By William Charters and  Jeffrey Kiser

Advance Medical Directives are the most prevalent guidance documents seen by hospitals and medical professionals nationwide.  In 1990, Congress passed the Patient Self-Determination Act, requiring healthcare providers to inform patients of their right to make predetermined decisions regarding their medical care.  Since then, advance directives have consistently increased in popularity and are accepted in all fifty states.  Between 2000 and 2010, patients 60 years or older who died with an Advance Directive rose from 47 to 72 percent.

Often, healthcare professionals are tasked with interpreting and implementing a course of action based on incomplete or misunderstood parameters contained in a “legal document”.  Unfortunately, many of these directives were drafted by individuals without a thorough understanding of the medical, or legal, implications of the verbiage they have chosen – resulting in documents that are subject to misinterpretation or simply ineffective.

Among the first hurdles healthcare professionals face are conflicting laws between states, since not each follows the same processes or mandates the same requirements for a directive.  It is important, therefore, for healthcare providers to be cognizant of their own state’s laws regarding acceptance and enforcement of foreign directives. While the predominant standard is to honor a validly executed directive from another state, not all states follow this protocol.  Equally as impactful is the difference as to the powers that may be granted to the Healthcare Proxy.  Virginia, for example, does not recognize the Death with Dignity Act (or any other physician-assisted end of life program), but nearby Washington DC does.

Validly executed Advance Directives can not only provide evidence of a patient’s intent, but also lessen the degree of family/physician uncertainty when difficult decisions need to be made.  Proactively making end of life decisions can relieve family members of guilt and prevent intrafamilial conflict.  The provisions of a valid Advance Directive are virtually unassailable by family or physician and provide a safe haven for the decision-making process.

While these rules and the rest of the Health Care Decisions Act offer aid and guidance, they are most effective when implemented proactively. The time to inquire about the status of a patient’s Advance Directive or to provide resources for such a discussion with friends and family is early in the process, even as soon as the initial intake. The time to educate yourself and your practice on the many facets of Advance Directives and establish a protocol for how you will determine if an Advance Directive exists for a given patient and how to insure it is valid and enforceable, is now.

Next time:  What if you, as a treating physician, believe that the treatment demanded by patient or decision maker is inappropriate?

William Charters

Jeffrey Kiser

William Charters, a member of Goodman Allen Donnelly, focuses his practice on providing advice, risk and litigation support to healthcare.  Jeffrey Kiser, an Associate with GAD, provides detailed and targeted guidance to individuals and groups for their end of life and asset protection plans.  goodmanallen.com