Emily Kile, Esq.8727 E. Via de Commercio

Scottsdale, AZ 85258480-348-1590

info@kilekuplaw.comwww.kilekuplaw.com

AHCA 2013 Annual Conference

Understanding Advanced Healthcare

Directives

Living Wills and Health Care Directives

The Law

The Forms

The Cases

The Law

1. Agent- adult with authority for health care decisions = POA 2. Artificially administered- food/fluid = medically invasive .3. Attending physician- physician with primary responsibility.4. Comfort care- enhance quality of life ≠ not prolonging life.5. Health care directive- document for health care decisions.6. Health care POA- written designation of agent = health decisions. 7. Health care provider- person licensed, a hospice or organization

36-3201. Definitions

Definitions Cont.

8. Interested person- patient, listed person, provider/employee directly involved.

9. Living will-means written statement guides treatment decisions

10. Mental health care POA-designation for mental health care decisions

11. Physician- licensed M.D. or D.O.

12. Principal- subject of a health care POA.

13. Surrogate- POA person = decisions for a patient.

Revocation of the Health Care

Directive

Making a written statement to revoke the entire document or just disqualify the Agent;

Orally notifying the Agent/Surrogate or health care provider;

Making a new Health Care Directive;Any other act that demonstrates a specific

intent to revoke or disqualify the surrogate.

Authority and Responsibilities

The Surrogate or Agent is NOT responsible for paying the health care costs of the person unless otherwise required to do so.

The Surrogate cannot authorize or consent to any action over which the patient could not lawfully consent.

The Surrogate who makes good faith health care decisions for the patient is not subject to civil or criminal liability for those decisions.

Authority and Responsibility con’t

Acts or refusals made in reliance on the provisions of a directive presumed to = good faith.

Good faith includes all health care decisions based on reasonable belief of a patient’s desires or best interests IF consistent with patient’s directive.

Good faith health care decisions means:

Bad Faith = evidence of improper motive

Authority and Responsibility con’t

Surrogate must make all decisions in accordance with the patient’s wishes as expressed in the document.

If the document does not provide sufficient information to know what the patient would want under that particular circumstance, the surrogate shall base the decision on the surrogate’s knowledge of the patient’s values, if known.

Authority and Responsibilities con’t

A surrogate who is not the patient’s agent or guardian shall not have the authority to consent to or approve the permanent withdrawal of artificial food or fluid.

If neither the document nor the surrogate’s knowledge of the patient’s values can be determined to the surrogate’s satisfaction, the surrogate shall decide based on the surrogate’s good faith belief as to what is in the patient’s best interest.

Responsibilities of Health Care Providers

The decisions are inconsistent with the patient’s health care directives as known to the provider; or

The health care provider fails to comply with the decision or direction because it violates the provider’s conscience, the provider promptly makes known the unwillingness to comply and promptly transfers the responsibility of patient care to another provider.

A health care provider shall comply with the health care decisions made by the patient’s surrogate, unless:

Responsibilities of Health Care

Providers con’t

A health care provider had a DUTY to volunteer about the patient’s health care, to the patient’s surrogate to the same degree that they owe this duty to the patient.

A health care provider who makes good faith health care decisions in reliance on the provisions of apparently genuine health care directive or the direction of a surrogate is immune from criminal and civil liability and is not subject to professional discipline for that reliance.

Good Faith

“Good faith” includes all health care decisions, acts and refusals to act based on the health care provider’s reasonable belief of the patient’s desires, a patient’s best interests or the directives of the patient’s surrogate if these decisions, acts or refusals to act are not contrary to the patient’s express written directions in a valid health care directive.

Challenging a Directive

An interested party may file a petition to determine the validity or effect of a health care directive or the decision of a surrogate.

The court is required to set and conduct a hearing within five (5) working days of the filing of the petition.

Food and Fluid

If the petition is filed to challenge the decision of a guardian to permanently withdraw the artificial administration of food and fluid from a patient who is in an irreversible coma or is in a persistent vegetative state that the patient’s doctor believes is irreversible or incurable, and the person has no written directives, there is a presumption that the patient has directed the health care providers to provide the patient with food and fluid to a degree that is sufficient to sustain life, including, if necessary through a medically invasive procedure.

Food and Fluid

The presumption to provide food and fluid can only be rebutted if either of the following applies:

A. In reasonable medical judgment any of the following applies:

The provision of food or fluid in not medically possible.

The provision of food or fluid would hasten death.Because of the medical condition of the patient, the

patient would be incapable of digesting or absorbing the food or fluid so that its provision would not contribute to sustaining the patient’s life or provide physical comfort to the patient.

Court Involvemen

t

B. The court finds both of the following by clear and convincing evidence:

The patient is in an irreversible coma or is in a persistent vegetative state that is irreversible or incurable.

While competent, the patient manifested the patient’s intent that medically invasive life prolonging treatment, including artificial administration of food or fluid, not be administered in the case of an irreversible coma or persistent vegetative state that is irreversible or incurable.

Prohibited Requirements

A person shall not be required to execute or prohibit a person from executing a health care directive as a condition for providing health care services or insurance.

Out of State Health Care

Directive

A health care directive prepared in another state, district is valid in this State if it was valid in the place where and at the time when it was adopted so long as it does not conflict with the criminal laws of the State of Arizona.

If there is more than one health care directive and they are inconsistent, the most recent directive is deemed to represent the wishes of the patient.

Suicide and Mercy KillingThe laws of Arizona do not approve or authorize suicide, assisted suicide or mercy killing.

Health Care POAAn adult may designate another adult to make

health care decisions on their behalf and/or provide funeral and disposition arrangements in the event of death.

The documents must include language that is clear about the intention to create the Health Care POA.

Health Care POA

Must be signed or marked (or the person indicated to the notary or witness that the HCPOA expressed the person’s wishes and that the person intended to adopt the POA) by the person who is the subject of the POA and must be dated.

Notarized or witnessed by at least one adult (we recommend two witnesses or a witness and notary).

Witnesses/Notary

A notary or witness shall not be

any of the following:A person designated to make health care

decisions on the principal’s behalf.A person directly involved with the provision

of health care to the principal at the time the HCPOA is executed.

If the HCPOA is witnessed by only one person, that person cannot be related by blood, marriage or adoption and may not be entitled to any part of the principals’ estate by will or operation of law at the time the POA is executed.

Fiduciaries

A person whose license as a fiduciary has been suspended or revoked may not serve as an agent under a POA in any capacity unless the person is related to the principal by blood, marriage or adoption.

This does not apply if the person’s license has been reinstated and is in good standing.

Amendments to the HCPOA

Amendments to the HCPOA require the same signature and witness/notary requirements as the HCPOA.

Except for a change of the agent’s address or phone number.

SurrogatesIf the patient has a health care power of

attorney, the designated agent shall act as the patient’s surrogate.

If the patient has a guardian appointed by the court for the express purpose of making health care decisions, the guardian is the health care surrogate.

SurrogatesIf there is neither a health care POA nor a court

appointed guardian, then:Patient’s spouse, unless legally separated;An adult child or if more than one child, by

majority who are reasonably available for consultation;

A parent of the patient; If the parent is unmarried, the domestic partner;A brother or sister of the patient;Close friend of the patient.

Surrogates

If none of the people on the list can be located, the patient’s attending physician after the physician consults with and obtains the recommendations of an institutional ethics committee.

If that is not possible, then the attending physician after consulting with a second physician who concurs with the physician’s decision.

Living WillAn adult may prepare a written statement,

known as a living will, to control health care treatment decisions. It can be part of the health care POA or a stand alone document.

It has the same execution requirements as the HCPOA.

Pre Hospital Medical Care Directive

The document must be printed on orange paper.

In the event of a cardiac or respiratory arrest, directs the withholding of cardiopulmonary resuscitation by emergency medical system and hospital emergency department personnel.

Pre Hospital Directive

The law authorizes the agent under a written HCPOA or guardian to sign if the person is no longer competent to do so.

The document must be witnessed by a licensed health care provider. (licensed to practice medicine, nurse, osteopathic physician or physician assistants).

Karen Quinlan

In re Quinlan (New Jersey, 1976) Karen was 22 years old and for unknown reasons, ceased

breathing for at least two 15 minute periods. She was diagnosed as terminally ill and in a persistent vegetative state. She required a respirator for her breathing and a feeding tube for hydration and nutrition.

The Court allowed her father to disconnect the respirator. He did not request that the feeding tube be removed. She lived nine (9) years after the respirator was removed.

The Court reasoned that the State’s interest weakens and the individual’s right to privacy grows as the bodily invasion increases and the prognosis dims.

Mildred Rasmussen

Rasmussen (Arizona, 1986)She was a 70 year woman who suffered three

strokes, a degenerative neural muscular disease and an an organic brain syndrome. She had a nasal gastric tube for nutrition. She spent all of her time in bed ‘in a curled up position.’ She was able to swallow liquids on her own.

Court concluded that a family member or guardian may assert the constitutional rights of the patient to refuse medical treatment using the “best interests” standard.

Nancy Cruzan

Cruzan (Supreme Court of Missouri, 1988)May a guardian order that food and water be withheld

from an incompetent ward who is not in a persistent vegetative state but who is otherwise alive and not terminally ill? The Missouri Court found that the guardians did not have

the authority to withdraw the hydration and nutrition to Nancy. “The State’s interest is in the preservation of life, not only Nancy’s life, but also the lives of persons similarly situated yet without the support of a loving family. This interest outweighs any rights invoked on Nancy’s behalf to terminate treatment in the face of uncertainty of Nancy’s wishes and her own right to life.”

Lessons LearnedHave a written Health Care Power of Attorney

Include at least one alternate.

Review it annually.

Have a written Living Will that specifies when and what treatment you want and do not want. Is it limited to just terminal condition or persistent vegetative state?

Is a DNR appropriate?Disaster doesn’t have strike if you plan.

www.azag.gov

Life Care Planning

Obtain Free Living Will, Health Care POA and Mental Health POA