New Laws and Initiatives to Increase Communicating End of Life Decisions

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September 16, 2014
SmithAmundsen Health Care Alert

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January 1, 2015 is approaching quickly. Health care providers and professionals need to know their role in implementing patient treatment decisions, given the recent passage of the Practitioner Order for Life-Sustaining Treatment (POLST) and Power of Attorney Health Care (POAHC) laws.

In a previous alert, SmithAmundsen reported on the changes to the Illinois POLST law, signed into effect on August 26, 2014. In accordance with the new law, the Illinois Department of Public Health will publish the new DNR/POLST form reflecting these changes by January 1, 2015. The new DNR/POLST law allows those with primary responsibility for care and treatment of a patient, including advanced nurse practitioners, physician assistants, attending physicians, and health care providers selected by or assigned to the patient, to issue orders concerning cardiopulmonary resuscitation or life-sustaining treatment including but not limited to DNR orders. The current DNR/POLST form notes a DNR form should reflect the current preferences of persons with advanced or serious illness and frailty, and also encourages completion of a Power of Attorney for Health Care (POAHC).

Effective January 1, 2015, the Power of Attorney Health Care law will also change. A treating provider is defined as a health care provider or professional such as the attending physician and any other persons administering health care to the patient including those employed by or acting for any such authorized person. However, a person who is not administering health care to the patient, even though he/she is a physician or otherwise licensed, certified, authorized or permitted by law to administer health care, may be named as a health care agent.

Similarly, the new Power of Attorney Health Care law does not allow licensed professionals providing health care to a patient, or to the minor child of a patient, to witness to a statutory POAHC; nor can any operator of a health care facility, their relatives, directors and officers of that facility, etc., serve as a witness for a patient resided in their facility. Other employees, such as a non-owner chaplain or social worker, nurses and others are permitted to act as a witness. As in the past, a witness to a POAHC may not include a parent, sibling, descendant, spouse of a parent, spouse of a sibling, spouse of a descendant of the patient, the patient’s agent, or any successor agent regardless of whether the relationship is by blood, marriage or adoption.

The new Illinois POAHC includes a reader friendly FAQ format asking:

  • WHAT ARE THE THINGS I WANT MY HEALTH CARE AGENT TO KNOW?
  • WHAT KIND OF DECISIONS CAN MY AGENT MAKE?
  • WHOM SHOULD I CHOOSE TO BE MY HEALTH CARE AGENT?
  • WHAT IF MY AGENT IS NOT AVAILABLE OR IS UNWILLING TO MAKE DECISIONS FOR ME?
  • WHAT WILL HAPPEN IF I DO NOT CHOOSE A HEALTH CARE AGENT?
  • WHAT IF THERE IS NO ONE AVAILABLE WHOM I TRUST TO BE MY AGENT?
  • WHAT DO I DO WITH THIS FORM ONCE I COMPLETE IT?
  • WHAT IF I CHANGE MY MIND?
  • WHAT IF I DO NOT WHAT TO USE THIS FORM?

Although the language from the former Illinois short form POAHC has been deleted from the new law, the new law does state clearly that the new POAHC form does not invalidate any health care agency previously executed, or any act of any agent, done prior to the effective date of this law.

Also be aware that any non-statutory, non-witnessed health care power of attorney executed by the patient can be honored if it complies with the limitations provided in the new law, designates the agent, and the agent’s power. The law notes that no specific format is required for the statutory health care power of attorney, other than the notice must precede the form.

NOTICE TO THE INDIVIDUAL SIGNING THE POWER OF ATTORNEY FOR HEALTH CARE

No one can predict when a serious illness or accident might occur. When it does you may need someone else to speak or make health care decisions for you. If you plan now, you can increase the chances that medical treatment you get will be the treatment you want. In Illinois, you can choose someone to be your “health care agent”. Your agent is the person you trust to make health care decisions for you if you are unable or do not want to make them yourself. These decisions should be based on your personal values and wishes.

It is important to put your choice of agent in writing. The written form is called an “Advanced Directive”. You may use this form or another form, as long as it meets the legal requirements of Illinois. There are many written and online resources to guide you and your loved ones in having a conversation about issues. You may find it helpful to look at resources while thinking about and discussing your advance directive.

Stricken from the POAHC statute are former definitions of “incurable or irreversible condition,” “permanent unconsciousness,” and “terminal condition.” Thus, the POAHC is not limited in its application to incurable or irreversible conditions, permanent unconsciousness or terminal conditions. In the current statutory form, the principal is given following boxes to check to indicate the scope of authority to the agent:

…make decisions for me only when I cannot make them for myself. The physician(s) taking care of me will determine when I lack this ability. (If no box is checked, then the box above shall be implemented) OR

…make decisions for me starting now and continuing after I am no longer able to make them for myself. While I am still able to make my own decisions, I can still do so if I want to.”

Two options are given on the form to best reflect the patient’s wishes to express if quality of life is more important than length of life.

…If I am unconscious and my attending physician believes, in accordance with reasonable medical standards, that I will not wake up or recover my ability to think, communicate with my family and friends, and experience my surroundings, I do not want treatments to prolong my life or delay my death, but I do want treatment or care to make me comfortable and to relieve me of pain.

…staying alive is more important to me, no matter how sick I am, how much I am suffering, the cost of procedures, or how unlikely my chances for recovery are. I want my life to be prolonged to the greatest extent possible in accordance with reasonable medical standards.

Of note, the POAHC statutory form seems to imply that the medical profession would be defining reasonable medical standards.