POWER OVER YOUR FATE

Most of us will not soon forget this spring's nightly news stories of Terri Schiavo and the very public battle to determine her fate. Hearing about her case made many of us pause to consider, "Could the same thing happen to one of my loved ones or me?"

Most of us will not soon forget this spring’s nightly news stories of Terri Schiavo and the very public battle to determine her fate. Hearing about her case made many of us pause to consider, “Could the same thing happen to one of my loved ones or me?”

Regardless of varying religious, moral and political views on the subject, most states recognize the ability of a competent adult person to make a written directive, known as a “living will,” with regard to the application or withdrawal of life-sustaining procedures in the event he or she becomes unable to make his or her own health care decisions. Much of the anguish suffered by Terri Schiavo’s family might have been avoided if she had expressed her life and death wishes in a living will. However, a living will has only limited application and may not, by itself, be enough to ensure that the decisions you wish to have made are carried out by others. Thus, one needs to understand not only what a living will is and what it can accomplish, but also what a living will cannot do.

Living Wills

Georgia’s living will statute was enacted in 1984 for the express purpose of recognizing the right of a competent adult, called the “declarant,” to make a written directive instructing his or her physician to withhold or withdraw life-sustaining procedures upon the occurrence of certain conditions: a terminal condition, a coma or a persistent vegetative state. The Georgia law defines the term “life-sustaining procedures” as

Any medical procedures or interventions, which, when applied to a patient in a terminal condition or in a coma or persistent vegetative state with no reasonable expectation of regaining consciousness or significant cognitive function, would serve only to prolong the dying process and where, in the judgment of the attending physician and a second physician, death will occur without such procedures or interventions. The term “life-sustaining procedures” may include, at the option of the declarant, the provision of nourishment and hydration, but shall not include the administration of medication to alleviate pain or the performance of any medical procedure deemed necessary to alleviate pain.

An individual has the legal right to control all aspects of his or her medical care.

Because a living will applies only when the declarant is suffering under a terminal condition, a coma or a persistent vegetative state, it is important to know exactly what these conditions are. A “terminal condition” is defined by Georgia law as an incurable condition caused by disease, illness or injury which, regardless of the application of life-sustaining procedures, would produce death. A “coma” is a profound state of unconsciousness caused by disease, injury, poison or other means and for which it has been determined that there exists no reasonable expectation of regaining consciousness. Finally, a “persistent vegetative state” is a state of severe mental impairment in which only involuntary bodily functions are present and for which there exists no reasonable expectation of regaining significant cognitive function.

The procedures for establishing whether a person has a “terminal condition” or is in a “coma” or a “persistent vegetative state,” such that the provisions of the living will are triggered, are similar for each condition. Two physicians, one of whom must be the declarant’s personal physician, must participate in the determination process. They must both personally examine the declarant and make a specific written certification based on the condition of the declarant. For a terminal condition, the physicians must certify that there is no reasonable expectation for improvement in the condition of the declarant and that death of the declarant will occur as a result of the condition. In the event of a coma, the physicians must find that the declarant has been in a profound state of unconsciousness for a period of time sufficient for the declarant’s physicians to conclude that the unconscious state will continue and that there exists no reasonable expectation that the declarant will regain consciousness. If the declarant is suffering from a persistent vegetative state, the physicians must state that the declarant’s cognitive function has been substantially impaired and that there exists no reasonable expectation that the declarant will regain significant cognitive function. A living will can be given effect only if the required certification is made.

A declarant executing a living will may chose one, two or all three of the above-described conditions in which the living will is operative and life-sustaining procedures will be withheld or withdrawn. Thus, for example, a declarant could elect to maintain life-sustaining procedures if he or she is in a coma, but to have life-sustaining procedures withheld or withdrawn if he or she is in a persistent vegetative state. The declarant of a living will also has the opportunity to indicate whether the withholding or withdrawal of life-sustaining procedures will include the withholding or withdrawal of nourishment and hydration. A declarant may indicate that both nourishment and hydration be withheld or withdrawn, that neither be withheld or withdrawn, or that nourishment be withheld or withdrawn but not hydration.

The withholding or withdrawal of nourishment or hydration is an issue about which many people hold strong convictions. By indicating a choice in a living will, the declarant can be sure that his or her family and health care providers will know the declarant’s wishes on this issue.

To be valid, a living will must be signed by the declarant in the presence of at least two witnesses. Each of those witnesses must be a competent adult who is not related to the declarant by blood or marriage; would not be entitled to any portion of the estate of the declarant upon the declarant’s death under any Last Will and Testament of the declarant; would not be entitled to any portion of the declarant’s estate under the rules of descent and distribution; is neither the attending physician nor an employee of the attending physician nor an employee of the hospital or skilled nursing facility in which the declarant is a patient; is not directly financially responsible for the declarant’s medical care; and does not have a claim against any portion of the declarant’s estate. In addition, if a living will is executed in a hospital or skilled nursing facility, it must also be signed in the presence of either the chief of the hospital medical staff, a physician on the medical staff that is not participating in the care of the patient, or a person on the hospital staff who is not participating in the care of the patient and who is designated by the chief of staff and the hospital administrator, if witnessed in a hospital; or the medical director or any physician on the medical staff who is not participating in the care of the patient, if witnessed in a skilled nursing facility.

Georgia law clearly states that any declaration that constitutes an expression of the declarant’s intent shall be honored, regardless of the form used. The Georgia living will statute does, however, provide a statutory form. Any declaration similar to the statutory form is presumed on its face to be valid and effective. Any living will executed on or after March 28, 1986 is effective from the date of execution unless and until revoked.

Thus, we have seen what a living will can do under Georgia law: it provides the declarant the opportunity to indicate under what conditions life-sustaining procedures will be withheld or withdrawn (a terminal condition, a coma or persistent vegetative state, or any combination thereof) and, specifically, whether the supply of nourishment or hydration should be withheld or withdrawn under those conditions. It is important to remember, however, that a living will applies only if the declarant is in a terminal condition, a coma or a persistent vegetative state and, even then, only if the physician certification procedures are met. Furthermore, a living will gives direction only with respect to life-sustaining procedures, as outlined above.

What happens if a person is unable to make his or her own health care decisions, but is not in a terminal condition, a coma or a persistent vegetative state? Or what will happen if a physician recommends for a person unable to make his or her own health care decisions a surgical or medical treatment that does not constitute a life-sustaining procedure? Presumably, a living will would not apply. Because of these limitations in the application of a living will, one might also desire to execute an additional document, called a “durable power of attorney for health care.”

Durable Powers of Attorney for Health Care

An individual has the legal right to control all aspects of his or her medical care. However, if an individual becomes disabled, incapacitated or incompetent, his or her right to control treatment could be denied unless that individual has delegated to a trusted agent the power to make decisions. The Georgia Durable Power of Attorney for Heath Care Act details the requirements for an individual, called the “principal,” to appoint an “agent” to make heath care decisions on his or her behalf.

When a valid durable power of attorney for health care (DPAHC) is in place, it will take precedence over a living will. The health care powers that may be delegated to an agent include all powers that an individual has to be informed about and to consent to or refuse or withdraw any type of health care. This includes, for example, the decision to admit or discharge the principal from hospitals, nursing homes or other health care institutions; contracting for any and all types of health care facilities and services; and the examination and consent to disclosure of the principal’s medical records. A DPAHC may even extend beyond the principal’s death by allowing the agent to authorize an autopsy, make anatomical gifts and dispose of the principal’s remains.

To have a valid DPAHC, the appointment must be in writing and signed by the principal, or by some other person in the principal’s presence and at the principal’s direction. The DPAHC must be witnessed by two or more competent adults. In addition, if a DPAHC is executed when the principal is a patient in a hospital or skilled nursing facility, it also must be witnessed, in the presence of the principal, by the principal’s attending physician.

The Georgia Durable Power of Attorney for Health Care Act provides a statutory form that may be used to appoint a health care agent, but the statutory form is not intended to be exclusive and other forms may be used.

If the principal has a living will as provided by the Georgia Code, the living will is not operative so long as there is available an agent who is authorized by the principal’s DPAHC to make decisions regarding life-sustaining or death-delaying procedures for and on the behalf of the principal. Furthermore, unless the DPAHC provides otherwise, an agent who is known to the health care provider to be available and willing to make health care decisions for the patient has priority over any other person to make decisions and to act for the patient in all matters covered by the DPAHC.

A living will gives direction only with respect to life-sustaining procedures.

Thus, by executing a DPAHC, a principal can designate the person he or she desires to make health care decisions for the principal in the event the principal becomes incapacitated and is unable to make his or her own health care decisions. The principal can designate the scope of the agent’s power in the DPAHC, thereby exercising a great deal of control over the agent’s decision-making process. Because a DPAHC is much broader in scope than a living will, it also can apply in situations where a living will cannot. For this reason, a DPAHC provides a greater degree of health care protection for an incompetent adult than that afforded by a living will.

Conclusions and Recommendations

Due to the limitations inherent in a living will, we recommend that every adult execute not only a living will but also a durable power of attorney for health care. Although having these documents does not mean that there will never be a legal fight over an individual’s medical care, those who execute these documents enjoy greater protection than those who do not, and there is a greater likelihood that their wishes will be carried out.

The DPAHC will name the person whom the individual thinks is best situated to make health care decisions for him or her if the individual cannot do so. The living will, in effect, serves as a “back-up” to the DPAHC. It provides details of the declarant’s desires and can help the health care agent make decisions that reflect the declarant’s wishes, as well as instruct family members and health care professionals about the medical care the declarant wants or does not want if for any reason his or her health care agent is unavailable.

Finally, if you have a living will or a DPAHC, we recommend that you review each of those documents on a regular basis to ensure that they still reflect your wishes and desires. As demonstrated by the unfortunate plight of Terri Schiavo, family members may have widely divergent views on the medical care and treatment to be provided to an incapacitated person. By having a living will and a DPAHC, you can take steps to ensure that there will be no question as to your desires regarding your medical care and treatment.

What If I Don’t Have a Living Will?

Before discussing living wills, it may be helpful to examine Georgia law to determine what would happen in the event a person who has not executed a living will becomes unable to make his or her own health care decisions.

The Georgia Medical Consent Law authorizes certain persons to consent to surgical or medical treatment that may be recommended or prescribed by a physician. Such persons include:

  • Any adult, for himself or herself, whether by living will or otherwise;
  • Any person authorized to give such consent for the adult under the Georgia Durable Power of Attorney for Health Care Act (discussed later in this article);
  • Any married person, whether an adult or a minor, for his or her spouse;
  • In the absence or unavailability of
    a living spouse, any parent, whether an adult or a minor, for his or her minor child;
  • Any person temporarily standing
    in loco parentis, whether formally serving or not, for the minor under his care;
  • Any guardian, for his ward; and
  • Any female, regardless of age or marital status, for herself when given in connection with pregnancy, or the prevention thereof, or childbirth.

If an adult is unable to consent to surgical or medical treatment for himself or herself, and in the absence of any other person mentioned above to consent on his or her behalf, the following persons are authorized to consent for him or her in the following order of priority:

  • Any adult child for his or her parents;
  • Any parent for his or her adult child;
  • Any adult for his or her brother or sister; or
  • Any grandparent for his or her grandchild.

Unfortunately, the provisions of this statute leave some questions unanswered. What, exactly, constitutes a “surgical or medical treatment”? Would the removal of life support constitute “medical treatment”? What about the withdrawal of nourishment and hydration? Because it is not clear whether this statute would allow the authorized person to direct the withdrawal of life-sustaining procedures, including the withholding or withdrawal of nourishment and hydration, we recommend that every adult execute a living will so that his or her wishes in this regard can be honored.

HIPAA and “Springing” Powers of Attorney

The Georgia statutory form durable power of attorney for health care (DPAHC) is not a “springing” power–that is, it does not require a determination that the principal is incompetent before it becomes effective. Different forms of DPAHCs, however, may contain springing powers. Moreover, many of our clients have chosen to execute a springing general power of attorney (GPOA), naming a person to make financial decisions on the principal’s behalf but only when the principal has been determined to be incompetent. If a DPAHC or a GPOA incorporates springing powers, the provisions of the Health Insurance Portability & Accountability Act of 1996 (HIPAA) become very important.

HIPAA was enacted to prevent unauthorized disclosures of protected health information. This can become a problem when the family of a patient is trying to determine whether the patient is incompetent in order to “activate” the patient’s springing powers of attorney. Most springing powers of attorney require the opinion of one or more physicians that the principal is disabled before the power becomes effective. But HIPAA prohibits the principal’s physicians from disclosing information about the principal’s medical condition to anyone other than the principal or the principal’s personal representative without the principal’s or the personal representative’s permission. The quandary is that the principal cannot give permission because he or she is incapacitated, and the agent named in the DPAHC or the GPOA cannot give permission as the principal’s personal representative because the agent does not qualify as the personal representative until the principal has been determined to be incompetent.

What solutions are available to overcome this problem? We have three suggestions:

  • Do not execute a springing power of attorney, but have the power of attorney become effective upon execution;
  • If you have a springing power of attorney, execute a separate authorization allowing your physicians to disclose health information potentially relevant to a determination of incompetency; or
  • Provide for an alternative method for determining incompetency, such
    as a committee of trusted relatives
    or friends.

Other Considerations for Living Wills and DPAHCs

Beyond the importance of having a living will and a DPAHC, the Terri Schiavo case highlighted the turmoil that can result from widely divergent religious, moral and political viewpoints regarding a person’s directive to withhold or withdraw life-sustaining procedures. Therefore, it is important for you to examine your personal values and desires regarding that issue before you execute a living will or a DPAHC. In most cases, it is equally important to communicate those values and desires to your family and your health care providers to confirm that they understand and will act with your values and desires in mind. You should also take great care in choosing the person to serve as your agent under a DPAHC, and speak to that person about his or her willingness to accept that role and abide by your directions. And do not feel constrained by the statutory forms. If you have specific wishes that are not addressed in the statutory forms, make sure those specific wishes are clearly spelled out in your living will and DPAHC.