Understand the Significance of This Important Document
Hyman G. Darling
While an individual is competent, he or she may exercise their option to have treatment provided to them or discontinued, so that no further attempt should be made to provide them with life support and related medical treatment. While competent, it is relatively straightforward and easy for someone to make decisions regarding their own health care. When competency falls into somewhat of a gray area, the test for competency helps to determine whether the patient understands the nature of their illness and the effects that proposed treatment or lack thereof would have on them.
Since 1990, a person in Massachusetts has been able to make their own decisions and provide for their future care with a document called a health care proxy. This is similar to a living will or a document called five wishes or advance medical directives. These documents designate another person to substitute for the patient in making decisions regarding end of life and ongoing health care treatment.
However, the standard form provided by medical facilities does not provide for a so-called do-not-resuscitate order (DNR). Many individually prepared documents do include language that permits the agent under the health proxy to make decisions for the patient relative to all medical decisions, including end of life and possibly a DNR.
In the absence of a health care proxy, a guardian will have to be appointed by the Probate Court in order to determine not only ongoing care for the patient, but also extraordinary treatment or the withdrawal of that treatment. These cases may take a significant time period from the inception of the filing of the documents in Probate Court, giving notice to all parties, scheduling a hearing, and, very often, hiring an attorney or guardian ad litem (another person, usually an attorney, appointed to represent the interests of the incapacitated person).
This process will likely be even more drawn out as a result of the enactment of the Uniform Probate Code of 2009, which protects an incapacitated person’s rights by instituting various protections or hurdles that must be overcome before a decision is made regarding an incapacitated person’s health care, especially end-of-life decisions. Certainly, most people don’t want their life made public within the Probate Court, which is also a time-consuming, often-emotionally draining, and expensive process. All of these issues may be compounded when there is a contest regarding who should serve as the guardian and whether or not the person’s end-of-life decisions are being carried out in a manner that is appropriate for them and as they may have desired.
Most people have heard of famous end-of-life cases, namely Karen Quinlan, Nancy Cruzan, and Terri Schiavo, all of which brought national attention to the issue of making decisions for another person, especially relative termination of life support. It is interesting to note that the cases mentioned involve relatively young women, as opposed to older individuals, regarding the withdrawal of mechanical life-support machines, which, when removed, allow an individual to die shortly thereafter. Had these women signed DNRs when they were competent, their families would have been spared tremendous anguish.
A DNR order becomes a separate and distinct issue relative to the decision-making process, because it normally is executed by a person and is also signed off as accepted by that individual’s physician. A DNR is not necessarily made public, but rather provided by the physician to the patient. The form is normally kept in the physician’s office, and copies or separate portions of the form are then given to the patient, who may keep one in their wallet, post one on the refrigerator, or display one in a prominent place within his or her home in the event that it is needed.
Normally, when paramedics are called to a home, they must take all action necessary to preserve the life of the patient, but they are protected from potential liability by a DNR order, which allows them to withhold life-sustaining measures. Each DNR order in Massachusetts has a separate number, as initially a program was considered in which all DNR orders would be entered into a central database, which would be maintained and available 24/7 in situations where the patient may need to have care considered but not administered.
There are many instances in which DNR orders are used effectively. In the case of a terminal illness, such as COPD, liver failure, kidney failure, etc., where one’s life will only be prolonged with more treatment, that person may opt for a DNR order.
This is not to say that oxygen, dialysis, and other procedures would not be continued, but if that individual went into cardiac failure, or was stricken with another ailment, such as pneumonia or a similar life-threatening situation, then the patient could refuse treatment that would prolong their life. The individual should also instruct his or her caregivers to consider not calling 911 in times of crisis, as this normally implies that care is desired.
Normally, a DNR does not come into play when one is placed on hospice, as hospice implies and requires that no heroic measures be used to keep a person alive.
On the other hand, sometimes a person doesn’t want to sign a DNR, but rather prefers a health proxy that includes so-called living-will language, which states that he or she does not wish to be kept alive by heroic means unless there is going to be a relatively good quality of life and a reasonable expectancy to regain the baseline of the care and health that they enjoyed prior to the unfortunate illness, accident, or other issue causing a health decline.
In other situations, DNR orders may be suspended when one is having medical treatment such as a surgery, in which, if the DNR were not suspended, then the medical treatment may have to be terminated. This is similar to instances where a health care proxy is suspended during medical procedures.
It is important to take the decision whether or not to sign a DNR very seriously. Naturally, if an individual is in an accident and there is a good chance that they will recover, then they likely would want such things as a using a defibrillator or respirator to save their life. Individuals who wish to sign a DNR should be fully informed of the effect of signing the document.
Once it is signed, copies should be provided to all other physicians who may be treating the patient, as well the health care proxy agent, family members, and even any attorney who created other estate-planning documents, so that the DNR will be made part of the record with the health proxy.
Possibly someday, a national (or at least a state) registry bank of DNR orders will be initiated, and records will be maintained for the individuals who wish to execute it. After signing, it is a good idea to renew this document on an annual basis to establish that the patient continues to understand the nature of it.
Attorney Hyman G. Darling is chairman of Bacon Wilson, P.C.’s Estate Planning and Elder Law departments, and he is recognized as the area’s preeminent estate planner. His areas of expertise include all areas of estate planning, probate, and elder law. He is a frequent lecturer on various estate-planning and elder-law topics at local and national levels, and he hosts a popular estate-planning blog at bwlaw.blogs.com/estate_planning_bits; (413) 781-0560; baconwilson.com
