by Thomas D. Begley, Jr., Esquire, CELA

A Health Care Power of Attorney simply appoints a Health Care Representative to make medical decisions without giving any direction to the representative. The Advance Directive gives instructions for end-of-life decision-making. A Health Care Power of Attorney can be combined with an Advance Directive/Living Will. There are essentially four choices:

1. Terminate Life. This provision would instruct the health care providers to terminate life, if there was no reasonable hope of recovery or regaining a meaningful quality of life. The state Living Will statute spells out conditions that must be met before life can be terminated.

2. Treat Aggressively. Some people do not want to entrust end-of-life decision-making to others. They feel that no matter how hopeless the situation may appear, they could improve. For these people the “treat aggressively” option makes sense. The Health Care Provider is directed to treat the individual aggressively no matter how hopeless the situation, and the Health Care Representative is not authorized to override these instructions in the document.

3. Medical Power of Attorney Only. Some people do not feel comfortable in thinking about end-of-life decision-making. They would rather let someone else make that decision when the time comes. A Medical Power of Attorney appoints the Health Care Representative and leaves the end-of-life decision-making to that individual.

4. Court Appoints Guardian. Ignore the problem, do not sign a Health Care Power of Attorney or Advance Directive, and have a guardian appointed by a court to make medical decisions.

The first three options make sense, the fourth option does not.

Choosing a Health Care Representative is not easy. A married couple typically selects their spouse. Individuals also tend to select children. The appointment of a Health Care Representative puts a heavy burden on that person. No one looks forward to terminating the life of a loved one. Some people would find it very difficult to implement the individual’s decision to terminate life. In selecting a Health Care Representative, the personality of the proposed Representative should be considered.

It is also possible to include a consultation clause in the document whereby an individual appoints a Health Care Representative and instructs that Representative to consult with others prior to making a final decision. Avoid selecting two or more individuals as Health Care Representative. If there are two people, there could be conflict at the time a final decision is to be made. Appoint one person and have them consult with the other, but give the person originally appointed the right to make the final decision after consultation.

This conversation (or series of conversations) is extremely critical in order to have the hope that our care at this juncture of our lives is the way we want it.

In addition to that important conversation, there is another very important conversation we should have with those who care about us.

That conversation must emphasize our desire to secure and maintain the highest quality of life possible during whatever phase of life we are in. That means letting your loved ones know that you will need them to help you through illnesses and injuries. And that this help will need to take the form of supporting you through the maze that is our medical system. That could mean everything from being an extra set of ears at the doctor’s office, to vigilance at the hospital bedside.

That means becoming knowledgeable and asking lots of good questions throughout our lives — on our own behalf and on behalf of loved ones.

That means partnering with our health care professionals to make the wisest decisions about tests and treatments.

The advance directive is not just applicable at the end of life. It matters whenever the signer does not have decision-making capacity. In addition, if you’ve signed an Advance Directive, you’ve gone through the process of choosing a trusted person to make decisions for you when you cannot. So that person might also be an appropriate choice for an “every day” advocate or health partner. The agent, then, may not only be the legal decision maker, s/he most productively could also be an advocate, interpreter, analyzer and spokesperson. Good medical care requires your involvement as long as you’re able, and it requires the help of an advocate. You together with that person (or another friend or family member — or even a community of people willing to help) can help you in a variety of ways — from getting an accurate diagnosis, knowing whether a medical test is a good idea, understanding treatment options, to preventing errors that can harm you. A growing body of evidence shows that patient outcomes improve when patients and their loved ones more actively participate.

Especially in the hospital setting, the presence of an advocate can mean the difference between making end-of-life decisions in the short term — or making them many years down the road.

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Today’s Senior Magazine, August 2013 – New Jersey residents have a new tool through which they can ensure that their health care wishes are carried out by all medical providers.  Signed into law on December 21, 2011 by Governor Chris Christie, the New Jersey POLST (Practitioner Orders for Life Sustaining Treatment) legislation became effective February 22, 2013.  The legislation enables patients to use a standard new form to express their health care wishes and help patients and families with end-of-life care planning.  Unlike a legal document such as an Advance Health Care Directive/Living Will or Health Care Proxy, the POLST is a doctor’s order. 

The new form is to be printed in green or on green colored paper and is to stay with the patient at all times at home or in a healthcare facility. By law, the directives contained on the form must be followed by healthcare professionals.  Jane Knapp, of Right at Home, an in-home agency, attended four training sessions on the POLST and is among the very few individuals in New Jersey trained on the POLST since the law was enacted.  According to Knapp, only a primary care physician or an Advanced Practice Nurse (APN) is legally allowed to complete a POLST on behalf of an individual. 

Aside from being a doctor’s order, the other significant difference between the POLST and a legal Advance Directive is the specific time frame and limited si

tuations which the POLST is designed to cover.  The Advance Directive may be thought of as a broad framework out of which a care plan can be developed while a POLST is specifically designed for individuals with limited life expectancies and can be more specific in addressing the patient’s current condition.  Knapp points out, “The key to POLST is it’s within the context of your own personal diagnosis … it’s very specific … It’s the now; it’s not the future.”

It is recommended that the POLST be reviewed frequently, and if there is a change in medical condition or residential setting, it may be changed accordingly.  Whereas advance directives are designed to apply throughout an individual’s life unless his preferences change, Knapp stated, “The POLST is about immediacy… Every adult should have an Advance Directive but not every adult should have a POLST.”

Goals of Care

The POLST form contains two essential parts, the “Goals of Care” and the “Medical Interventions.” The “Goals of Care” section describes how one would like to live his or her life in the time he has left. The “Medical Interventions” section includes the patient’s preferences on life sustaining treatments including cardiopulmonary resuscitation, intubation, mechanical ventilation, artificially administered nutrition and/or hydration, and other specific medical interventions.

Patients should review their POLST forms regularly since they are so specific.  For example, if a patient has cancer and then goes into remission, his preferences regarding life sustaining treatment may have changed.  He should therefore sign a new POLST.  If a cancer patient grows weary of medical testing or treatment and changes care preferences, a new POLST should be signed.  In fact, according to Knapp, with each change of residence or transition of care – for example, a new hospitalization or entry into rehabilitation – the POLST should at least be reviewed.  The urgency to continually update the form may well prompt more doctor  visits.

Since the POLST is designed for patients who face end-of-life care decisions, the form should be kept in an obvious place in a patient’s home such as on the refrigerator or by the telephone.  Patients are supposed to keep the original POLST with them while their doctor’s office maintains a copy.  Of course, with each new POLST, the old original plus the copies should be destroyed to avoid confusion.

POLST v. Legal Healthcare Directives

While the goals of the POLST certainly overlap with advance directives, such as living wills and health care proxies, a POLST is not designed to replace a traditional Advance Directive.  For example, a health care proxy or power of attorney appoints an individual who will serve as a patient’s health care agent.  This person has the authority to communicate with a patient’s medical team based on instructions that the patient has provided in his or her Advance Directive.  The health care agent can speak for the patient if the patient is unable to speak for himself.  The health care agent can act whether the patient has a terminal end stage illness or whether the condition is not life threatening.  Since it is possible for any individual to contract a sudden serious illness or injury, it is highly recommended that everyone age 18 and older has a healthcare directive.

Unlike a healthcare directive, the POLST does not name a healthcare agent and only focuses specifically on end-of-life decision making.  In fact, it is designed to be completed only by individuals with life-limiting illnesses.  If an individual lacks capacity to communicate his wishes enough for a POLST to be completed, a health care proxy, under an Advance Directive, can complete the POLST for him.

In addition to appointing a healthcare proxy, advance directives exceed the scope of medical issues covered by the POLST by including powers such as the authority to hire medical care providers on the patient’s behalf, do whatever is necessary to keep the patient in his or her own home even if he needs long-term care, hire psychiatric support if necessary, change healthcare personnel and visitation rights.

New Jersey is not alone in implementing the use of the POLST.  The vast majority of states already have POLST programs or they are in the process of developing them.  According to an article printed in the Cleveland Clinic Journal of Medicine in July 2012, the POLST has already been shown to improve a patient’s control over his or her health care.  The form is designed to provide clear instructions about patient preferences that are easy to follow.

Once more physicians receive training to help patients effectively use the POLST, it will be a powerful tool to give patients control.  It also vastly improves the communication between the patient and healthcare providers since it is a form easily recognizable by any medical professional treating the patient.  Nevertheless, all adults should have an Advance Directive to address expected and unexpected situations when a patient cannot communicate for himself.  The best decisions are generally made in advance in non-emergency situations and, now more than ever, those who plan ahead can customize and truly control their medical treatment.

DANA E. BOOKBINDER, Esq. advises seniors and families on asset protection for long term care expenses, disability planning, estate planning, and estate administration.  She practices elder law with Begley Law Group, P.C., in Moorestown, Princeton, and Stone Harbor, New Jersey. Ms. Bookbinder has been certified as an Elder Law Attorney by the ABA accredited National Elder Law Foundation.  She is a past Chair of the Elder and Disability Law Section of the New Jersey State Bar Association and past chair of the Burlington County Probate Committee.  She often lectures to civic and retirement groups, is a frequent speaker for New Jersey State Bar Association Institute of Continuing Legal Education, and has appeared on radio and television to discuss planning for seniors.

JANE KNAPP, Marketing Director for Right At Home, an in-home care assistance and skilled nursing provider,  has been involved at the State level, as the POLST form has evolved, and works to promote understanding of its appropriate use.  She serves as Chairman of the Tri-County Regional Ethics Committee (TREC) and is part of the NJ State Ethics Consortium for Long-Term Care.

For additional information:  visit the POLST national Web site – http://www.ohsu.edu/polst

Contact Dana Bookbinder at 856-787-4227/dbookbinder@begleylawgroup.com

Contact Jane Knapp at 856-795-9707 / jane@rahsj.com

More than 30 percent of the people who reported memory loss or confusion issues admitted that they experienced issues at work, socially or while attempting household chores, and those situations were negatively affected by the lapse. Experts say that these reportings indicate a better screening tool is needed in order to identify early signs of Alzheimer’s disease or dementia.

Individuals from 21 states in 2011 were surveyed on a number of questions, including questions about memory loss within the past twelve months. Only 35 percent of those who reported memory issues said they discussed the issue with a health care professional. The report, published in the May 2013 issue of the Center for Disease and Controls’ Morbidity and Mortality Weekly Report, is the first of its kind, stated Angela Deokar, report co-author.

If you feel you are experiencing some cognitive decline, do not hesitate to discuss it with your doctor and request a full medical exam. You may have a treatable cardiac disease or metabolic disorder which is affecting your thinking process. Medical conditions which may cause memory issues and confusion, such as vascular dementia, are not reversible but can be slowed or halted with medication.

If the cause of cognitive decline is not reversible, you will want as much time as possible to plan for your future care needs. You must develop an Advance Directive, a Durable Power of Attorney, and take other protective steps with your estate planning attorney.

Pioneers of Elder Law – For over 30 years, Gilfix & La Poll Associates LLP has innovated creative legal solutions to help you manage and plan the future of your estate.
To contact an estate planning lawyer visit http://www.gilfix.com/ or call 800.244.9424.