Posts Tagged ‘advance directive registry’

The Patient Self Determination Act and Trends in Advance Directives

MAY 4, 2015 VOLUME 22 NUMBER 17

Last month the U.S. Government Accountability Office released a short report on the use of advance directives in hospitals, nursing homes and other health care facilities. The report, requested by members of the Senate Committee on Commerce, Science, and Transportation, addressed the experience with health care powers of attorney, living wills and other advance directives. It makes interesting reading — or at least it is interesting to policy wonks concerned about individual autonomy and self-determination.

To review: the federal Patient Self Determination Act was adopted in 1990. It requires each state to summarize its state laws on advance directives (and to make that summary publicly available). It also requires hospitals, nursing homes, hospices, home health agencies, health maintenance organizations, and Medicare Advantage providers to inform patients about advance directives and to ask if they understand the concepts. It does not explicitly require health care providers to either ask for advance directives or to require any patients to complete them (in fact, the law prohibits any provider from requiring advance directives), but the thinking when the law was passed was that advance directives would become much more common.

Although the federal law does not require it, many states responded by not only summarizing their laws but also providing simple forms for patients to complete. And, though the law does not require this step either, many health care providers responded by offering those simplified forms to patients on admission or periodic review.

How well has the federal law worked in its quarter-century of existence? The study doesn’t really answer that question, though it does give some data points to assess changes in the medical community and care standards. At the time of adoption of the Patient Self Determination Act, activists estimated that perhaps 20% of patients had executed an advance directive. The study finds that almost half of adults over age 40 have now signed a living will or health care power of attorney. That suggests that something more than twice as many patients have done at least some health care planning — though it is unclear whether that is the result of the federal law or changing public knowledge and preferences (or both things).

Perhaps more interestingly, the study found wide disparities by type of care facility, medical condition, age, race, income level, and education level. Even gender made a significant difference, with women signing advance directives about 5% more frequently than men.

Interestingly, though, only a handful of the demographic categories reviewed in the GAO report had more than 50% compliance. Nursing home residents had signed advance directives about 55% of the time (up 10% from the previous decade). 60-year-olds had perhaps the most vigorous increase in signature rates, moving from just under half having signed a decade ago to almost three out of four today.

Interested in some of the other categories? You can read the report yourself, as it is available online. But here are some of the more interesting items we extracted from its analysis:

  • Unsurprisingly, people with chronic illness are about 10% more likely to have signed an advance directive. We say “unsurprisingly,” but perhaps it is surprising that the gap is not even wider, since only about one-third of those with chronic illness have signed.
  • People over age 65 are about twice as likely to have signed advance directives as their younger relatives. Adults under age 35 weigh in at only about 10%.
  • “White” Americans are much more likely to have signed advance directives than are African-Americans, Latinos or other races or ethnic groups. (Why quotation marks around “white”? Well, wouldn’t “pink” be more accurate?)
  • There is a clear relationship between income (each $25,000 increase in annual income seems to correspond with a 3-5% increase in signatures) and education (each degree increases the signature rate by at least 5%).

What does this information suggest to us about the use of advance directives? We have a number of ideas — occasioned more by our real-world experience than empirical evidence:

  1. You could sign an advance directive, right now. If you live in Arizona, there are plenty of resources to make it easy. Want to find Arizona forms? The Arizona Attorney General’s office has had perfectly acceptable forms online for several decades. Over time the detail, and the explanation, has grown the file to more than 20 pages — but don’t be intimidated. Actually filling out and signing the forms is pretty straightforward, and you could complete it today. Based on the statistics in the GAO report, there’s about a 50% likelihood that you’ll increase the percentage of coverage (that is, there’s about an even chance you haven’t done this yet).
  2. Do you already have an advance directive? No? Are you sure? We’re surprised how often long-time clients come back to see us to update their estate plans, and, “oh, by the way, I need to sign one of those health care powers of attorney this time.” Clients are often surprised that they’ve had perfectly good advance directives for years. If you’ve met with a lawyer any time in the past thirty years, you probably have gotten advance directives with your other estate planning documents.
  3. Sometimes people vaguely recall signing a health care power of attorney or a living will, but can’t think of where the documents are now. Wouldn’t it be nice if there was an easy way to keep these documents available online, and maybe just carry a wallet card with the information (for emergencies)? Good news! You can do exactly that — at least if you live in Arizona. We are one of about a dozen states operating a state registry for advance directives; it’s easy, free and helps keep track of your documents.

 

Health Care Directives — Advice for Snowbirds and Travelers

APRIL 20, 2015 VOLUME 22 NUMBER 15

Arizona weather is beautiful, especially this time of year. We do have our weather challenges — for most of the state, that means the summer months — but there is no doubt that Arizona is attractive to visitors from more northern climes during the fall, winter and spring.

Many of our “snowbird” visitors have taken care of their estate planning at home, before they get here. They might have signed a will, a trust, a durable financial power of attorney, and a health care power of attorney. Let us focus, for a moment, on that last document — the health care power of attorney.

If a resident of another state has signed a health care power of attorney and a living will in their home state, but they spend three months every winter in Arizona, should they sign a second document to govern their care while they are in Arizona? If so, what if they are only in Arizona for two weeks?

We’re not like those television shows, with driving music and a scary-sounding narration. We’ll give you the answer now, and explain it for a few moments. Generally speaking, we don’t think an occasional visitor — even one who stays for weeks or months and returns every year — really needs to sign separate Arizona documents. There might be exceptions, though, depending on some individual situations. We’re happy to explain what we mean — plus, this gives us a chance to write about “advance directives” generally.

If you have signed any documents about your health care decision-making — whether a “health care power of attorney,” a “living will,” a “health care proxy declaration,” or some other similar-sounding document, you have signed an advance directive. The latter term is the catch-all description for all of the former documents, regardless of local laws and terminology. Advance directives are just any directive about your health care that you make in advance.

(A pet peeve: an advance directive may be very clever and innovative — that is, advanced — but then it would be called an “advanced advance directive.” In other words, your health care documents are not “advanced directives,” but “advance directives.” Thanks — we feel better getting that off our chests.)

But is your Minnesota (or New York, or Iowa) health care power of attorney — whatever it is called in the state where it was written — valid in Arizona? Short answer: yes. Arizona law says that a health care directive from another state is valid in Arizona “if it was valid in the place where and at the time when it was adopted” (so long as it doesn’t violate Arizona criminal law).

But wait — we’re not done. There are still a couple questions to consider:

  1. Did you name your daughter back in Wisconsin (where you live nine months of the year) as your health care agent? If so, do you think it might make sense to make your son in Arizona your agent while you’re here? It might not be a big deal, and it might even be a good idea to make them co-agents all of the time, so you don’t have to worry about where you are when you take ill. But the logic behind your original choice of agent might be different during your extended stay.
  2. Do you know whether Arizona’s law is more generous than your home state’s law? Many states still restrict living wills, for instance, to “terminal conditions.” Arizona does not have that limitation. You might want to be governed by Arizona’s more generous statutes when you can — and your lawyer back home might even tell you that she likes using something like Arizona’s language even though your state doesn’t expressly approve of it.
  3. Do you have to use a particular form in your home state? A handful of states make you use something in substantially the state statute’s language, and that language tends to be limiting. Arizona doesn’t require that, and so your health care power of attorney can be more tailored to your individual wishes. Feel strongly about particular medical procedures, or about organ donation, or even about cremation? Arizona lets you put all of that in your health care power of attorney, and you might like to take advantage of that approach while you’re here.
  4. But wait — it’s not all sweetness and light. If you decide to sign a new health care power of attorney and living will while you’re in Arizona, you might have effectively revoked your home-state documents. Better make sure you don’t have to visit the lawyer twice every year — once when you come to Arizona for three months and once when you return home.
  5. Are you sure you’re not an Arizona resident? Even if you are, your out-of-state health care directives are still valid, but as you creep up on 50/50 time spent in two states, you might want to get some advice about which one you really live in.
  6. There’s something to be said for using a form that is familiar to the local medical community, just to save time and reduce the possibilities for misunderstandings. That’s probably not a big deal, but it does argue for using the local forms by default. Truth be told, though, we don’t use the Arizona statutory form for health care directives at all — we think we can better capture clients’ wishes with a more eloquent and less generic document.

You can get Arizona’s generic health care power of attorney, mental health care power of attorney, living will and related forms easily, and free, online. The Arizona Attorney General’s office keeps a collection of forms and instructions, and we direct people to it all the time. Arizona also has a really neat system for keeping your health care directives online, too — and then you can just carry a wallet card with login information for anyone who needs to download a copy.

Is That Your Advance Directive in Your Pocket?

JULY 14, 2014 VOLUME 21 NUMBER 25

Last week I underwent a small outpatient surgical procedure (I’m fine — thanks for asking). I actually looked forward to the “do you have an advance (medical) directive?” question on admission.

A couple years ago I had another outpatient procedure, and was surprised when the intake clerk asked about my advance directive. “Do I have one?” I asked, rhetorically and with amazement. “Of course I do. I am an elder law attorney practicing in Tucson for nearly four decades. I was involved in the leading Arizona case on surrogate decision-making. I sat on the legislative committee that came up with our current advance directive law, back in the 1990s. Not only do I have an advance directive, I have a darn good one!” “Great,” said the intake clerk — “where is it?” “In the safe at my office,” I admitted, sheepishly. Oops.

Since then the Arizona legislature has approved an online registry system for advance directives. If you are an Arizona resident, you can send a copy of your health care power of attorney and/or living will to the Arizona Secretary of State’s office, along with a form you can download, to get your directive(s) registered. (Actually, there’s nothing on the site that says you have to be an Arizona resident — but we simply don’t know how well it would work if you tried it from out of state.)

Once you fill out the form and send in your copy, you get a registration card back in the mail. It takes a couple weeks. My wife and I did this a few months ago, and so I was looking forward to using the form when I had to go in for last week’s procedure.

“Do you have an advance directive?” asked the intake clerk. “You bet,” I proudly replied, “and here’s how you can get a copy of it.” I handed her my card. “Huh.” she said (she was very expressive). I asked her if she had ever seen a card like that before, and she said that yes, she had started seeing them lately. Good news all around.

How does it work? Your registration card has a website address, a login and a password. Your doctor, hospital, outpatient surgical center, or anyone else with the login and password can download a PDF copy of your advance directive. And you can update the directive any time you sign a newer, better, more current one.

Here’s what mine looks like:

AdvanceDirective

There’s a really nice change in recent years, and one disappointment. We can help you with the latter.

The good news: the current Arizona Secretary of State thinks your name is more important than his. His predecessor had her name splashed across the form and your identification card in type larger than the part that identified you — it was confusing and cheesy. Examining my current card, I can’t even find the Secretary of State’s name, and that despite the fact that the fellow is running for office. Good to see.

The bad news: the card you get back is a flimsy paper wallet-sized card. It isn’t laminated, isn’t durable, is easy to lose. Our offer: if we wrote your advance health care directive, we have a laminating machine that we’ll be happy to use to laminate your card. No cost. Just like the program itself.

Now you Arizona residents don’t have to keep a copy of your advance health care directives with you when  you travel. You don’t need an extra copy stuffed into your car’s glove box. And, most importantly of all, you don’t have to sign a new document when you get to the intake clerk and she asks you where you keep your advance directive. It’s online, and in your wallet/purse.

Want more information? Check out the Secretary of State’s website or, within reason, ask us. If you are a client, we will do whatever it takes to get your card into your wallet. If you’re not a client, we’re still pretty nice, and we’ll probably help you.

You say you don’t have an advance directive? Shame. Get on that right away, please. It really is important.

©2017 Fleming & Curti, PLC
%d bloggers like this: