healthcare directives living wills
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Hanlon Niemann, PC3499 Route 9 North, Suite 1F
Freehold, NJ 07728(732) 863-9900
www.njelderlawcenter.com
Elder Law, Estate Planning, Asset Protection and Veterans Benefits
Attorneys
Healthcare Directives (Living Wills)
Fredrick P. Niemann, Esq.Fredrick P. Niemann offers his clients nearly 30 years of accomplished practice in the law. He is a member of the National Academy of Elder Law Attorneys (NAELA), the Financial Planning Association of NJ, the Guardianship and Conservatorship Committee of NAELA, Monmouth County Probate and Estate Committee and the Monmouth County Chancery Practice Committee. He is a certified will case mediator approved by the NJ Supreme Court. Mr. Niemann is one of the select few attorneys in NJ, accredited by the Veteran’s Administration to apply for Aid and Attendance benefits for Veterans and their spouses. He is a highly rated Avvo attorney and he has been listed by the prestigious Martindale-Hubbell as “peer review” rated for 2008. A Martindale-Hubbell rating attests to a lawyer’s legal ability and professional ethics, it reflects the confidential opinions of the bar and judiciary.
Legal Wit
What do you get when you cross a librarian with a lawyer? A lot of information you need, but nothing you can understand.
When questioned by a prospective client as to what a contingent fee is, the lawyer answered, “A contingent fee to a lawyer means, if I don’t win your case, I get nothing. If I do win your case, however, you get nothing.”
Cont.
How can you tell when a lawyer is lying? His lips are moving.
The first thing we do, Let’s kill all the lawyers
Shakespeare
Today’s Topic
EFFECTIVE LIFE CARE PLANNING THROUGH A
•Living Will, Healthcare Directive
• What Is It?
• How Does It Work?
• Do You Need One?
HEALTH AND PERSONAL CARE PLANNING
USING LIVING WILLSAND
ADVANCED MEDICALDIRECTIVES
Amazing advances in medicine and medical technology in recent
decades have given us all an ever increasing menu of medical choices
and treatments that generations before us would never have
imagined.
However, prolonging years of life, does not necessarily translate into a quality of life.
In other words, is it the quantity of life or the quality of life that mattersmost to you?
What was your answer?
Regardless of your answer,
How can you be sure:•Your healthcare wishes will be
respected if you become incapacitated?
•You will be permitted to die the way you want to die, if you are unable to speak for yourself at the time?
•Remember the names Karen Ann Quinlan (1976) and Terry Schiavo (1998)
Karen Ann Quinlan was the first modern icon of the right to die debate. She collapsed at a party at age 21. The doctors saved her life but she suffered severe brain damage and lapsed into a “persistent vegetative state”. Her parents/ family waged a much publicized legal battle to remove her feeding tube and life support machinery. They succeeded but after the resuscitator was disconnected, she lapsed into a coma for almost 10 years in a nursing home before she died on her own in 1985.
Terry Schiavo, she had a heart attack and suffered severe brain damage. Seven years later, her husband petitioned to have her feeding tube removed, the court authorized the removal of her feeding tube in 2005.
Neither had a written healthcare directive
Neither person had a document about action to be taken if they ever became incapacitated.
In the Quinlan case (a NJ case), the parents believed their daughter wanted to die.
In the Schiavo case (Florida law) the husband believed his wife would not want to be kept alive artificially. Her parents argued that she had no death wish and believed rehabilitation would cause her to get better.
Generally, a competent person has the right to control decisions about their healthcare.
In 1991, by congressional mandate under the Patient Self Determination Act, most healthcare facilities must comply with a patient’s healthcare decision making. This act is intended to ensure all adult patients know the extent of their right to control healthcare decisions through the use of “advance directives.”
The term “advance directive” means, any written instructions (i.e., living will, healthcare directive or Power of Attorney (POA) appointing a person to make medical decisions, or
Any written document describing, the kind of healthcare the individual wants or does not want, if the person ever loses the ability to make healthcare decisions.
What are the requirements for a valid healthcare directiveWritten document
Signed by a legally competent patient who understands the purpose and effect of the instructions being given.
Must appoint a healthcare representative and/or contain a statement of personal wishes regarding healthcare in the event of loss of decision making capacity.
In 1992, NJ adopted the New Jersey
Advance Directive Healthcare Act
What does loss of decision
making ability mean?•Unconsciousness
•Condition is terminal
•Proposed treatment is experimental, likely to be ineffective or likely to merely prolong the dying process.
Other Important Points to a
Healthcare Directive/Living Will
•May be revoked by oral or written notification or by a subsequent directive.
•Becomes operative when transmitted to physician or healthcare institution and when a person is determined to lack capacity to make decisions by attending/treating physician and one independent physician unless clearly apparent and the attending physician and healthcare representative agrees confirmation is unnecessary.
Important Points Cont.
•The designated healthcare representative should be authorized to receive protected healthcare information under the Health Information Portability Privacy Act (HIPPA)
•Medical
Privacy laws greatly reduce ability to obtain medical records and information about another person’s health.
Can a Physician / Hospital Refuse
to Honor a Living Will / Healthcare Directive
•Yes, but only if the action of withholding or withdrawing treatment, etc. to sustain life would violate a sincerely held personal or professional conviction.
Can an incompetent and/ or incapacitated person sign a
Living Will/Healthcare Directive
•No. What happens then?
Greater potential for disputes among family members as to correct medical decision.
If decision is not unanimous then legal proceeding likely required.
Significant expense to family, cost more than guardianship, decision may be contested
New Jersey Supreme Court has outlined a multi-step process to protect incapacitated person from prolonging life sustaining measures under defined circumstances.
First and foremost, “the goal of the decision making for incompetent patients” should be to determine and effectuate, insofar as possible, the decision the patient would have made if competent.
Living Will
•Is there a difference between a living will and healthcare directive?
•Yes
•Living Will is an “instructive directive.” It directs under what circumstances life sustaining treatment should be withheld or withdrawn. It does not appoint a healthcare agent in the event of incapacity. It is used less frequently than a POA for healthcare.
Power of Attorney (POA) for Healthcare
•A POA for Healthcare is a written document which appoints another individual to be his/her agent (representative) to make medical decisions on his/her behalf if the client is unable to make those decisions himself/herself due to incapacity.
Cont
Healthcare Power of Attorney (POA)
(Cont’d)
•Because of appointment of agent, the document is more flexible than the living will and allows agent discretion to make medical decisions, if necessary
•Agent is allowed access and interaction to medical records and healthcare providers, including physicians.
Cont
Healthcare Power of Attorney (POA)
(Cont’d)•The Healthcare POA can include
instructions regarding life sustaining treatment.
•New Jersey offers immunity to health care providers who act in good faith based on agent’s directions.
Living Will and Powers of Attorney for Healthcare can also address death standards.
Brain vs. breath death.
Anatomical gifts
Uniform Anatomical Gift Act:
Must be explicitly authorized
Final Thoughts on Healthcare
Decision Making•Share you feelings and beliefs about
future care needs:
With your designated agent
With your family, close friends, doctor, clergy and attorney
By communicating you help them make the right choices and reduce feelings of guilt
If You Fail to Have a POWER OF ATTORNEY
and HEALTHCARE DIRECTIVE, You are
Doomed to a Guardianship
Fredrick P. Niemann, Esq
Hanlon Niemann P.C.3499 Route 9 North, Suite 1-F
Freehold, NJ 07728732-863-9900
GuardianshipPower of Attorney,
www.powerofattorneylawyerinnj.com
www.hnlawfirm.com