Two thoughts prompted me to
write this. The first the widely publicized case of Terri
Schiavo.Mrs. Schiavo did not have a Durable Power of Attorney for
Health Care, sometimes called an “Advanced Directive,” expressing
her clear instructions about how she wanted to be treated if she
were incapacitated. Her failure to make her wishes known led to what
the Supreme Court once called a “prolonged and anguished vigil” for
her family.
The second is the Federal “medical privacy” law commonly known as
HIPAA which prohibits doctors from communicating with others about
their patients’ situations --- even when they might otherwise want
to. People should be able to appoint someone to deal with their
health care issues if, for any reason, they cannot. They should have
the assurance that a “health care representative” whom they
designate will have the same access to their medical records and
physicians that they do.
The only way to do this effectively is in a Durable Power of
Attorney for Health Care.
The Terri Schiavo case has brought the courts and the media into
what should be a private matter. No matter what your personal views
are on health care issues, you should be able to express them in a
way that leaves no doubt what they are and how they should be
carried out. These matters should never be left to the courts or
made public in newspapers.
Many people either have no documents relating to health care or have
signed fairly short, generic “living wills.” These documents do not
really express people’s wishes other in very broad terms. There are
at least two major problems that they do not address.
The first difficulty is that the forms do not authorize health care
providers to communicate with a designated health care
representative or anyone else, other than the patient. None of the
forms, including those in the Connecticut Statutes, contain any
language about HIPAA. Under HIPAA, unless you have given your
representatives specific written authorization allowing them to
receive medical information, doctors cannot communicate with them.
The law provides heavy penalties for providers who give information
to anyone other than the patient without written authority
specifically referring to HIPAA.
There is a very strong possibility that you will not receive
treatment that you want, or that you may be given health care that
you do not desire. A properly drafted Durable Power of Attorney for
Health Care should specifically give your representatives the right
to have access to medical records, and to discuss treatment options
with doctors.
The second issue is that the simple forms, including those in the
Connecticut Statutes, just do not deal with some of the most
important issues. For example:
Do you want to be taken care of at home instead of a nursing
facility?
If you have a terminal condition, would you want hospice care?
Do you see a real difference between not being treated and stopping
treatment that has already begun? Some health care providers will
insist on continuing treatment in all events because not doing so is
“abandoning” the patient.
What level of medication would you accept for relief of intractable
pain?
Health care providers sometimes withhold pain medication on the
grounds that it may make the patient drug dependent. Almost all of
my clients with whom I have discussed this have said that, if they
were terminally ill and were experiencing unbearable pain, it would
not matter if they became “dependent.”
What are your wishes regarding so called “tube” feeding? You should
be very specific if, and under what circumstances, it would be
acceptable to you to have non-oral nutrition withheld.
Should someone to have the authority to compel health care providers
to carry out your express desires? Suppose that a physician, for
reasons of his own, simply will not follow your representative’s
wishes that you have expressed in writing?
Are there specific treatments that you do not want in any
circumstances?
A well thought out Durable Power of Attorney for Health Care should
address all of these issues.
Are you in favor of anatomical gifts or do oppose making them? Do
you make a distinction between anatomical gifts for “transplantation
and therapy” and those for “medical education and advancement of
science”? Designating “donor” on your driver’s license or signing a
short anatomical gift form could open the door to a medical school
anatomy class. Almost all of my clients who make anatomical gifts
want them limited to helping other people by transplantation. The
choice should be yours.
Small may, indeed, be beautiful, but shorter is not better. The 3 or
4 page forms, including the ones in the Statutes, are better than
having nothing at all. However, they do not allow medical providers
to communicate with your Health Care Agent. They do not let you
express your own, personal views on how you want to be taken care
of. Individually drafted Durable Powers of Attorney for Health Care help to have your
specific intentions.
If you cannot make your own health care decisions, courts should not
be making them for you. Trusted relatives or friends should. They
should have the authority they need to carry out your intentions.
A properly planned and drafted Durable Power of Attorney for Health
Care can go a long way toward guaranteeing that you will receive the
care that you desire and that you will not be forced to undergo
medical procedures that you don’t want.
This web site is designed to provide information in regard to the subject matter covered. It is made available with the understanding that the Law Offices of Jeffrey L. Crown is not engaged in rendering legal advice via this web site. If legal advice or other expert assistance is required, the service of a competent professional should be sought.
THE LAW OFFICE OF JEFFREY L. CROWN
21 New Britain Avenue, Suite 208
Rocky Hill, Connecticut 06067
