A New Era in End-of-Life Planning: The New Health Care Power of Attorney, Living Will and Organ Donation Statutes

1
A New Era in End-of-Life Planning The New
Health Care Power of Attorney, Living Will and
Organ Donation Statutes

• Kristin L. Burrows
• Attorney
• Graham, Nuckolls Brown, PLLC

2
What is an Advance Directive?

• An Advance Directive is a legal document that
  communicates ones desires regarding future
  health care decisions,
• To be used if one can no longer make or
  communicate those decisions.

3
What is anAdvance Directive?

• Two Main Types
• Living Wills state treatment preferences, usually
  for limiting life-prolonging treatment.
• Health Care Powers of Attorney authorize another
  person to make health care decisions on ones
  behalf.

4
A Little History

• North Carolinas first Living Will statute was
  enacted in 1977
• North Carolinas first Health Care Power of
  Attorney statute was enacted in 1991

5
Rationale Why do we have Advance Directives?

• Advance Directives can encourage people to
  formulate and communicate their desires regarding
  health care.
• Advance Directives can enhance peoples control
  over decisions about their health care.

6
Rationale Why do we have Advance Directives?

• Advance Directives can prevent confusion and
  conflict over health care decisions.
• Statutory Advance Directives create a legal safe
  harbor for health care professionals who honor
  them.

7
So Whats New?

• This past Summer, the North Carolina General
  Assembly enacted a revised Advance Directives
  statute, effective October 1, 2007.
• This was the first major revision of NCs Advance
  Directive statutes since 1991.

8
So Whats New?

• The law was changed in response to concerns
  raised by the Terri Schiavo case.
• In 2005, NC Legislators decided to review the
  clarity of the laws relating to Living Wills and
  Health Care Powers of Attorney.

9
So Whats New?

• Generally
• Reformed Statutory Advance Directive Forms.
• Includes new terms to describe medical conditions
  and treatments.
• Offers new choices about treatment preferences.

10
So Whats New?

• Attempt to resolve conflicts between Living Wills
  and Health Care Powers of Attorney
• Allows one to CHOOSE whether the authority of a
  health care agent, or the wishes stated in a
  Living Will, trumps in the event of a conflict.

11
So Whats New?

• Living Will includes a SHALL option, requiring
  that ones Living Will be honored.
• Note A Living Will cannot force a doctor to do
  something against his or her beliefs.

12
So Whats New?

• Attempts to clarify statutory terms.
• Brings consistency to the terminology used in the
  Living Will and Health Care Power of Attorney
  statutes.
• Attempts to make the terminology clearer to both
  doctors and patients.

13
So Whats New?

• Attempt to create a more user-friendly and
  understandable statutory form, with more
  flexibility in exercising choices.
• Not everyone agrees that the new forms are
  user-friendly.
• Note that the statutory forms are non-exclusive
  many attorneys have adapted the forms, or created
  their own.

14
So Whats New?

• Attempt to clarify the procedures for withholding
  life-prolonging measures when no Living Will or
  Health Care Power of Attorney exists.

15
The Problem Conflicts between LWs and HCPOAs

• When HCPOAs were authorized in 1991, many lawyers
  and health care providers thought they would
  replace the LW, but most people execute both
  documents.
• If a health care agent gives an instruction that
  conflicts with LW instructions, which controls?

16
The Problem Conflicts between LWs and HCPOAs

• Under the old law it was unclear
• Many lawyers argued the LW prevailed because
  Chapter 32A (the HCPOA statute) states In the
  event of a conflict between the provisions of
  this Article and the living will statute, the
  provisions of the living will statute control.

17
The Problem Conflicts between LWs and HCPOAs

• However, one could argue that the health care
  agents authority prevails because, under the
  HCPOA statute, the health care agent has the
  power to give consent to medical treatment,
  whereas the LW deals with withholding or
  withdrawing treatment therefore, one could argue
  no actual conflict exists.

18
The Problem Conflicts between LWs and HCPOAs

• IMPORTANT The new statute does NOT resolve the
  conflict for LWs and HCPOAs executed under the
  OLD law.
• Many people executed both documents - one person
  may think his LW controls, another may think his
  HCPOA controls - and it would be inappropriate
  for retroactive legislation to purport to
  determine a courts consideration of the legal
  arguments for both positions.

19
The Resolution Conflicts between LWs and HCPOAs

• The new law allows a person to choose whether a
  health care agents authority or a living will
  provision controls in the event of a conflict.

20
The Resolution Conflicts between LWs and HCPOAs

• Either the LW or HCPOA, or both, may specify
  which instrument prevails.
• New statutory LW form contains a section in which
  one can make this choice.
• In an attempt to avoid confusion and conflicts,
  the new statutory HCPOA does NOT include a
  similar section, but such a section could be
  drafted into the HCPOA.

21
The Resolution Conflicts between LWs and HCPOAs

• The statutory LW also specifies that the LW
  prevails if a choice is not specified.

22
The Problem Ambiguous and Inconsistent Medical
Terms for When Treatment Withheld

• The old LW and HCPOA statutes used ambiguous,
  dated and inconsistent terms to address
• When treatments could be withheld and
• What treatments could be withheld.

23
The Problem Ambiguous and Inconsistent Medical
Terms for When Treatment Withheld

• OLD TERMS
• The Living Will statute provided that certain
  treatments could be withheld if the persons
  condition was either
• Terminal and Incurable OR
• Diagnosed as a Persistent Vegetative State.

24
The Problem Ambiguous and Inconsistent Medical
Terms for When Treatment Withheld

• OLD TERMS
• The HCPOA gave the agent the power to withhold
  treatments when the patient
• Is Terminally Ill,
• Is Permanently in a coma,
• Suffers Severe Dementia, OR
• Is in a Persistent Vegetative State.

25
The Problem Ambiguous and Inconsistent Medical
Terms for When Treatment Withheld

• Inconsistency between the LW and HCPOA
• The LW makes no mention of severe dementia
• So, is severe dementia grounds for withholding
  treatment ONLY if one had appointed a health care
  agent?

26
The Problem Ambiguous and Inconsistent Medical
Terms for When Treatment Withheld

• Inconsistency between the old LW and HCPOA
• Terminal and Incurable vs. Terminally Ill
• Is a person in a terminal and incurable state
  as used in the LW also a person who is
  terminally ill as used in the HCPOA?

27
The Problem Ambiguous and Inconsistent Medical
Terms for When Treatment Withheld

• Ambiguous Medical Terms
• What comas are permanent?
• What is severe dementia?
• Does terminal illness imply imminent death?

28
The Problem Ambiguous and Inconsistent Medical
Terms for When Treatment Withheld

• Outdated Medical Terms
• Persistent Vegetative State
• Now, physicians use that term to refer to an
  intermediate condition of being vegetative for
  longer than one month.
• And they now use the term Permanent Vegetative
  State to refer to a more prolonged vegetative
  state that is probably not reversible.

29
The Resolution New Terms for When Treatment
Withheld

• Under the new LW treatment may be withheld in the
  following situations
• Incurable or irreversible condition that will
  result in death within a relatively short period
  of time OR
• Unconscious and, to a high degree of medical
  certainty, will never regain consciousness OR

30
The Resolution New Terms for When Treatment
Withheld

• Advanced Dementia or any other condition
  resulting in the substantial loss of cognitive
  ability and that loss, to a high degree of
  medical certainty, is not reversible.
• NOTE The person can choose for the LW to apply
  in any or all of the above conditions.

31
The Resolution New Terms for When Treatment
Withheld

• Are these new terms really better? Less
  ambiguous?
• The group that collaborated on drafting these
  terms admit that no terms are perfect, but they
  believe these terms are a vast improvement

32
The Resolution New Terms for When Treatment
Withheld

• Why are the new terms an improvement?
• They are not tied to current medical jargon, so
  there is less chance of the terms becoming
  outdated, like the term persistent vegetative
  sate did.

33
The Resolution New Terms for When Treatment
Withheld

• Why are the new terms an improvement?
• They are less confusing to the average person.
• For instance, rather than using the word coma,
  they used the phrase unconscious and will
  never regain consciousness to paint a clearer
  picture.

34
The Resolution New Terms for When Treatment
Withheld

• Why are the new terms an improvement?
• They are tied temporally to imminent death
  death within a relatively short period of time
  is preferable to terminal

35
The Resolution New Terms for When Treatment
Withheld

• The new HCPOA form does NOT include the new terms
  used in the LW.
• Why? The drafting group decided that a person
  chooses a health care agent whom they trust to
  make decisions, so the HCPOA form did not need
  these explicit standards.

36
The Resolution New Terms for When Treatment
Withheld

• Why are the new terms an improvement?
• They are not susceptible to the unintended
  expansion that some people fear
• E.g., the qualifier high degree of medical
  certainty is inserted, and
• the phrases advanced dementia and substantial
  loss of cognitive ability are considered better
  than severe dementia

37
New Terms What they mean to Physicians

• Unconscious and, to a high degree of medical
  certainty, will never regain consciousness
  implies a sustained medical condition arising
  from severe brain damage or some other condition,
  whereby in the judgment of the attending
  physician, the patient suffers from a complete
  loss of self-awareness, the condition is
  irreversible and, without the use of
  life-prolonging measures, the patient would
  succumb to death within a short period of time.

38
New Terms What they mean to Physicians

• Advanced dementia applies when dementia becomes
  an irreversible, progressive, terminal illness
  that has progressed to such a degree that, in the
  attending physicians judgment, the patient no
  longer has any of the following discernible
  cognitive function including memory and judgment
  the ability to interact meaningfully with others
  the ability to ambulate or control physical
  movements and the ability to maintain oral
  nutrition due to loss of the swallowing reflex.

39
The Problem Defining What Treatment Could Be
Withheld

• Old LW Terms
• The old LW provided that either
• Extraordinary Means OR
• Artificial Nutrition and Hydration
• could be withheld.

40
The Problem Defining What Treatment Could Be
Withheld

• Old LW Terms
• Extraordinary Means was defined as any medical
  procedure or intervention which in the judgment
  of the attending physician would serve only to
  postpone artificially the moment of death by
  sustaining, restoring, or supplanting a vital
  function.

41
The Problem Defining What Treatment Could Be
Withheld

• Old LW Terms
• Artificial Nutrition and Hydration was NOT
  defined.

42
The Problem Defining What Treatment Could Be
Withheld

• Old HCPOA Terms
• Allowed a person to grant their health care agent
  the authority to withhold life-sustaining
  procedures

43
The Problem Defining What Treatment Could be
Withheld

• Old HCPOA Terms
• Life-Sustaining Measures were defined as those
  forms of care or treatment which only serve to
  artificially prolong the dying process, and
• may include mechanical ventilation, dialysis,
  antibiotics, artificial nutrition and hydration,
  and other forms of treatment which sustain,
  restore or supplant vital bodily functions, but
  do not include care necessary to provide comfort
  or to alleviate pain.

44
The Problem Defining What Treatment Could Be
Withheld

• Problem with the LW terms
• The distinction between extraordinary means and
  the undefined term artificial nutrition and
  hydration
• Belief of some Roman Catholics and Christians
  that food and water should be provided until
  the very end, and therefore even food and water
  provided through tubes should never be considered
  extraordinary means.

45
The Problem Defining What Treatment Could Be
Withheld

• Problem with HCPOA terms
• Included artificial nutrition and hydration as
  one of many examples of life-sustaining
  procedures.
• Reflected the understanding of most health care
  providers that artificial nutrition and hydration
  is an extraordinary and invasive procedure

46
The Problem Defining What Treatment Could Be
Withheld

• Artificial Nutrition and Hydration
• Rhetorical Question What is the difference
  between a feeding tube and a mechanical
  ventilator? Isnt air just as fundamental to life
  as food and water?
• Is dialysis extraordinary in an otherwise
  healthy kidney patient just because dialysis is
  more complicated than nutrition and hydration?

47
The Problem Defining What Treatment Could Be
Withheld

• Confusion between the LW and HCPOA
• Are life-sustaining procedures as used in the
  HCPOA different from extraordinary means as
  used in the LW?
• Hard to answer, given the different wording of
  the definitions and especially given the
  inclusion of artificial nutrition and hydration
  among life-sustaining procedures but not among
  extraordinary means.

48
The Problem Defining What Treatment Could Be
Withheld

• As you can see, the old terms in the LW and HCPOA
  for what treatment may be withheld could lead to
  confusion, especially if a patient had both
  documents.

49
The Resolution New Terms for What Treatment
Withheld

• New term
• Life-prolonging measures
• Used in BOTH the LW and HCPOA
• Replaced life-sustaining because the verb
  prolong connotes the concept of artificial
  postponement of death better than does the verb
  sustain.

50
The Resolution New Terms for What Treatment
Withheld

• Definition of life-prolonging measures
• Medical procedures or intervention which in the
  judgment of the attending physician would serve
  only to postpone artificially the moment of death
  by sustaining, restoring, or supplanting a vital
  function, including mechanical ventilation,
  dialysis, antibiotics, artificial nutrition and
  hydration, and similar forms of treatment.
  Life-prolonging measures do not include care
  necessary to provide comfort or to alleviate pain.

51
The Resolution New Terms for What Treatment
Withheld

• Artificial Nutrition and Hydration
• Included in the definition of life-prolonging
  measures
• BUT, a person may give special instructions about
  them in the documents.

52
The Resolution New Terms for What Treatment
Withheld

• Artificial Nutrition and Hydration
• After much debate, the drafting group chose
• To continue to make these options explicit in the
  LW, and
• To add these explicit options to the HCPOA, and
• To make abundantly clear in both the LW and HCPOA
  that choosing artificial nutrition and hydration
  entailed tubes or other invasive mechanisms.

53
The Tough Choice Artificial Nutrition and
Hydration

• Many people do not understand what it means to
  have artificial nutrition and hydration.
• It is a very invasive procedure that involves
  inserting tubes down ones throat.

54
The Tough Choice Artificial Nutrition and
Hydration

• Often, other systems in the body are shutting
  down and have difficulty processing the
  artificial nutrition and hydration.
• You will often see patients on feeding tubes
  become very bloated.

55
The Tough Choice Artificial Nutrition and
Hydration

• The placement of a feeding tube often leads the
  patient to become very agitated. This results in
  the feeding tube becoming dislodged.
• The patient may need to be restrained in order to
  re-insert the feeding tube.
• This can repeat several times.

56
The Tough Choice Artificial Nutrition and
Hydration

• In a study of 421 randomly selected, competent
  persons living in 49 nursing homes, researchers
  found
• 61 opposed tube feeding
• 1/3 favored tube feeding if they were unable to
  eat due to permanent brain damage
• Of these people, 25 changed their preference
  when they learned that physical restraints might
  be necessary to facilitate feeding tube use.
• OBrien LA, Grisso JA, Maislin G et al. Nursing
  home residents preferences for life-sustaining
  treatments. JAMA 1995 2741775-9.

57
The Tough Choice Artificial Nutrition and
Hydration

• In addition to patient agitation and the
  increased need for physical restraints,
• Typically, dying patients do not experience
  hunger or thirst
• Malnutrition, a concomitant of the natural dying
  process, should not be confused with starvation

58
The Tough Choice Artificial Nutrition and
Hydration

• While dry mouth commonly occurs in dying
  patients, tube-feeding does not relieve it
• Complete relief from symptoms associated with dry
  mouth may be achieved with ice chips, moist
  sponge, sips of liquid, lip moisteners, hard
  candy and mouth care.

59
Living Wills The Shall Option

• The old LW provided that an attending physician
  had the option to withhold medical treatment in
  accordance with the patients living will.
• The new LW allows a patient to either give the
  physician this option or to require the physician
  to withhold treatments.

60
Living Wills The Shall Option

• However, it is important to understand that a
  physician has broad discretion to determine
  whether the conditions required for withholding
  treatment (and triggering the LW) actually exist.
• Practically speaking, this discretion gives the
  physician the ability to decide, in close cases,
  whether to follow a requirement that the LW
  instruction be honored.

61
Living Wills The Shall Option

• This option is helpful, though, because it can
  relieve the pressure placed on a physician to
  follow a living will when relatives object.
• Conversely, it can give the patients relatives
  additional leverage when the physician is timid
  about following the LW.

62
Living Wills The Shall Option

• Note that the law protects the rights of health
  care providers who object to withholding
  treatment on moral or conscience grounds by
  allowing them to decline to participate.
• They must, however, reasonably cooperate to allow
  a non-objecting health care provider to carry out
  the patients wishes.

63
Requirements for Executing a Living Will or HCPOA

• Two Witnesses
• Cannot be a relative by blood or marriage
• Cannot be an heir or beneficiary of patients
  estate
• Cannot be one of the patients health care
  providers, or an employee of the health care
  provider or treatment facility
• However, hospital volunteers can witness

64
Requirements for Executing a Living Will or HCPOA

• Notarized
• Both the person executing the document and the
  witnesses signature must be notarized.

65
Requirements for Executing a Living Will or HCPOA

• Capacity!
• The person executing the document must be of
  sound mind.
• The person must understand what they are signing
  - that is, the decisions they are making and the
  authority they are giving to their health care
  agent.

66
Requirements for Executing a Living Will or HCPOA

• How to determine capacity?
• Case by case
• Meet with the person privately
• Ask questions
• Try to determine if they are under any undue
  influence or pressure
• Consult with the health care providers

67
The MOST Form

• MOST Medical Orders for Scope of Treatment
• It is a physicians order that outlines a plan of
  care respecting the patients wishes concerning
  end-of-life treatment.
• It is NOT a legal form.

68
The MOST Form

• The purpose of the MOST Form is to inform and
  empower patients to clearly state their
  end-of-life care wishes, and to authorize health
  care providers to carry out those wishes.

69
The MOST Form

• The MOST Form is a portable medical order that
  travels with the patient, similar to a portable
  DNR.
• This allows health care providers at every level,
  and in any setting, to implement the decisions
  outlined in a MOST.

70
The MOST Form

• The form is BRIGHT PINK so it can be easily
  identified in an emergency situation.

71
The MOST Form

• Intended for patients who have an advanced,
  chronic, progressive illness.
• Not intended for patients with stable medical
  conditions.
• Appropriate for a patient whose life expectancy
  is less than one year.

72
The MOST Form

• MOST Form must be signed by a physician,
  physicians assistance or nurse practitioner
  after consultation with the patient.

73
The MOST Form

• Difference between the MOST and Advance
  Directives?
• LWs and HCPOAs are legal documents requiring
  witnesses and notarization
• LWs and HCPOAs inform physicians about the level
  and type of care the patient desires at
  end-of-life, or who is authorized to make a
  decision for the patient.

74
The MOST Form

• Difference between the MOST and Advance
  Directives?
• A medical order is necessary to carry out the
  patients wishes as stated in the LW, or as
  directed by the health care agent.
• MOST is a medical order already signed by a
  qualified health care professional.

75
The MOST Form

• Difference between MOST and Advance Directives?
• While the MOST form does not require witnesses or
  notarization, it is the first medical order in NC
  to require a patients or patient
  representatives signature on the form -
  indicates informed consent.

76
The MOST Form

• Difference between MOST and Advance Directives?
• The MOST form does not replace an advance
  directive it is another mechanism to ensure that
  patient wishes for medical treatment at the end
  of life are known and honored.

77
The MOST Form

• Conflicts between MOST and Living Will?
• MOST generally trumps the Living Will because a
  MOST form is designed to reflect current patient
  preferences for a limited time period.
• The MOST form does not revoke the LW, but does
  suspend it (when in conflict) while the MOST is
  in effect.

78
The MOST Form

• Conflicts between MOST and HCPOA?
• First, a patient always has the sole authority to
  make health care decisions while they are able
  the health care agent is only authorized to act
  if the patient is incapable of making their own
  health care decisions.
• However, a health care agent has the power to
  sign and revoke a MOST form.

79
The MOST Form

• How does a patient obtain a MOST?
• The forms are available ONLY through physicians,
  health care facilities, or agencies such as home
  health or hospice.

80
The MOST Form

• A MOST Form is valid for one year, and must be
  reviewed annually, or when
• The patient is admitted to and/or discharged from
  a health care facility,
• There is a substantial non-emergency change in
  the patients health status or
• The patients treatment preferences change.

81
The MOST Form

• If changes are desired, a new MOST form is signed
  and the existing form would be voided by checking
  a box that states FORM VOIDED.
• The MOST can also be voided without signing a new
  form.

82
Organ Donation

• Prior to October 1, 2007, the organ donation
  symbol on ones drivers license or ID card
  indicated only and intent to be an organ donor.
• Actual donation had to be effected by a will or
  by a donor card or other document attested by two
  witnesses.

83
Organ Donation

• A bill was introduced by Representative Dale
  Folwell and titled The Heart Prevails
• Goal for the heart designation on a drivers
  license, functions as actual organ donation.

84
Organ Donation

• The new law was passed and the organ donation
  symbol on a drivers license is now effective as
  an actual anatomical gift.

85
Organ Donation

• The anatomical gift authorized by the heart
  symbol will only be a gift of an organ or an eye.
• It will not include a gift of tissue or of the
  donors entire body.

86
Organ Donation

• When one chooses to place the heart symbol on
  ones drivers license or ID card, the organ
  donation is also shown on an internet organ donor
  registry maintained by the Division of Motor
  Vehicles.

87
Organ Donation

• The organ donation is not affected by the
  revocation, suspension, expiration or
  cancellation of a drivers license.

88
Organ Donation

• The law is retroactive
• It applies to drivers licenses issued prior to
  the enactment of this legislation.
• Bottom Line if there is a heart symbol on the
  drivers license, that person has made an
  unspecific and limited anatomical gift.

89
Organ Donation

• This anatomical gift may not be revoked or
  amended by a persons relatives or agents after
  their death.
• It is unclear whether someone who had a heart
  symbol on their license previously can now get a
  new license merely to remove the heart symbol.

90
Organ Donation

• It may be possible to enter a revocation or
  refusal of the anatomical gift on the interest
  registry - there is a place on the website for
  information on whether a donor has amended or
  revoked the gift.

91
Organ Donation

• Other Ways to Donate
• By Will
• Donation Card and Instruments
• Donor Registry

92
Organ Donation

• Who can authorize donation after death?
• Health care agent,
• Spouse,
• Adult children,
• Parents, Adult siblings, Adult grandchildren,
• Grandparents,
• Guardian

93
Thank You!!

• If you have any questions or would like me to
  email you this presentation, please email me at
• kristin_at_gnb-law.com