What’s the most important feature in an Advance Medical Directive?
Most people think it is the written guidance they provide to their loved ones when facing end-of-life issues. After all, in most medical directives, this guidance is the very first thing that appears in the document.
I believe such an emphasis is misplaced. For most people, the most important feature of a medical directive is that it empowers the person you choose as your patient advocate.
Keep in mind that a person’s medical directive is most relevant and useful when the person is in a hospital or similar institutional setting. The typical person in this setting does not have a terminal condition and therefore has no need to express end-of-life wishes. But very often, a person in this setting is unable to advocate for himself or herself in the event he or she is being ignored or mistreated.
That is why it is critical to have a medical directive that appoints a trusted person who can be your patient advocate and gives that person the authority needed to serve you in that capacity, including the right to access your medical information. Health care providers are legitimately concerned about breaches of medical privacy. Under the Health Insurance Portability and Accountability Act of 1996, known as HIPAA, they could face significant penalties for unauthorized releases of medical information. Understandably, they are reluctant to release private medical information to a third party without having first an explicit HIPAA authorization.
In my firm’s medical directive template, I emphasize granting the health care agent or patient advocate the powers he or she will need to protect the patient who is being ignored or medically mistreated. I think it is important to specifically reference HIPAA, which most pre-printed hospital-supplied medical directives do not do mention by name.
I do not ignore end-of-life instructions in my medical directive template, but I do not exalt them over the patient advocate provisions. Most clients select from one these two templates for expressing their end-of-life wishes, and tweak the language accordingly:
Option 1: If at any time my attending physician should determine that I have a terminal condition where the application of life-prolonging procedures – including artificial respiration, cardiopulmonary resuscitation, artificially administered hydration, and artificially administered nutrition – would serve only to artificially prolong the dying process, I direct that such procedures be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain. I understand that applicable law interprets “life-prolonging procedures” to include artificially administered hydration and nutrition.
Option 2: In exercising the power to make health care decisions on my behalf, my agent shall follow my desires and preferences as stated in this document or as otherwise known to my agent. My agent shall be guided by my medical diagnosis and prognosis and any information provided by my physicians as to the intrusiveness, pain, risks, and side effects associated with treatment or nontreatment. My agent shall not make any decision regarding my health care which he knows, or upon reasonable inquiry ought to know, is contrary to my religious beliefs or my basic values, whether expressed orally or in writing. If my agent cannot determine what health care choice I would have made on my own behalf, then my agent shall make a choice for me based upon what he believes to be in my best interests.
For those clients who wish to provide highly detailed guidance, I recommend they complete Five Wishes, a popular document that helps you express how you would want to be treated – physically, emotionally, and spiritually – if you were seriously ill and unable to speak for yourself. The Five Wishes document is a nice supplement to a medical directive that emphasizes the appointment of a patient advocate.