Posts Tagged ‘health care proxy’

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.

New Thanksgiving Tradition to Consider: The Conversation

NOVEMBER 24, 2014 VOLUME 21 NUMBER 43

You’ve signed your health care power of attorney and your living will (maybe they were in the same document). You’ve given a copy to your doctor  and of course your lawyer kept a copy. Did you think you were done? Because you’re not.

Now it’s time to take care of the most important part of this process. Signing advance health care directives is important (you have gotten that part done, right? What??!! You haven’t? Get to it!). But perhaps more important than the documents is The Conversation.

You need to discuss your end-of-life health care wishes with family members. You need to include the person named as your health care agent. You also need to include the family members not chosen to make the decision. You do not want anyone arguing that “mom can’t possibly have meant to sign that” or “someone talked dad into signing that power of attorney when he didn’t really know what it meant.”

Do you want your wishes carried out? The surest way to accomplish that is to actually tell everyone in your family what those wishes are. Tell them where the documents are, and share copies. Answer their questions. Make sure they know that you know what you’ve signed, and what you want.

That’s the premise behind The Conversation Project, a non-profit organization founded by columnist Ellen Goodman. According to the Project, 60% of poll respondents say that it’s important to make sure they don’t burden their families with tough decisions at the end of life. Still, 56% say they have not talked with their families about their wishes. In our experience, we think that latter figure is inflated; people tell us they have talked with family members, but on closer questioning they usually have not.

When do you have The Conversation? We’re promoting (only half tongue-in-cheek) Thanksgiving Day as the perfect opportunity. The whole family has gathered together, the turkey is taking longer to cook than was planned — it all works to create the perfect opportunity. OK — we know you’re not likely to bring it up this Thanksgiving, but what about the rest of the family weekend?

Need help getting started? The Conversation Project has a conversation “starter kit” to do just that. It gives you some ideas about what to discuss and how to bring it up. Get copies of your advance directives together for The Conversation and just get going.

We hear you say: “my family knows what I want.” No, actually, they don’t. And some may “know” you want something different from what other family members know. How would they know if you don’t tell them? Mind reading? Osmosis? Please don’t assume they do just because they know you.

So this Thanksgiving, try The Conversation (not the Francis Ford Coppola movie starring Gene Hackman, though we also like that one). Not ready to do it that soon? OK, but schedule it, and mention it to your family, and get ready for it. Don’t just shelve The Conversation, thinking you’ll get back to it later.

In the meantime, please, have a healthy, productive and happy Thanksgiving holiday.

Do You Need New Documents When You Travel Outside Arizona?

APRIL 21, 2014 VOLUME 21 NUMBER 15

It is late April, and that means Spring is in full bloom in Tucson. Many of our winter visitors (we call them “snowbirds” but not mockingly or disparagingly — at least most of the time) will be returning to Illinois, Missouri, New York, Wisconsin, or other, cooler climes. For that matter, many of our long-time residents and even natives will soon decamp to seashore or mountain, waiting for the heat to ease up.

This annual migration gives us a chance to talk about something we get asked a lot. Surely you need to have signed a health care power of attorney and living will. But do you need to have signed one in each state where you live part time? For that matter, should you sign a state-specific form for every state you visit more than fleetingly? And what about foreign countries — will your Arizona advance directive be valid in Canada, or Mexico, or Europe?

Generally speaking, there is less state-to-state law variation than you might suppose. Your Missouri will is going to be fine in Arizona (though if you’ve moved here from Missouri maybe your circumstances have changed — let us review and update your will. But that’s a different issue.) Your California living trust probably needs very little change for your new Arizona residence. But one area where there is a lot of variation is in advance health care directives.

What’s different? Terminology, for one thing. In Michigan they talk about health care “patient advocates,” and in New York they favor “health care proxies”. In both states they’ll probably figure out what you mean by “health care agent” or “health care power of attorney,” but you’d rather not make the hospital or doctor call the legal staff for an opinion. You’d rather just get good care, and quickly.

Another difference: some states permit broad powers in advance directives, and other states tend to be restrictive. Arizona is in the former camp. As many as half of the states would limit the applicability of your health care power of attorney to circumstances in which you are in a coma or persistent vegetative state; Arizona does not have that limitation, and so your Arizona form is unlikely to include that language. Furthermore, you probably wouldn’t want that restriction in your Arizona document while you’re here — why include a restriction that is not required and might cast doubt on the applicability of your advance directive, after all?

For many of our clients, the choice of agent is partly controlled by who is local and convenient. If you spend your winters near your daughter in Arizona, it might make sense to name her as your health care agent. If you return to Illinois, where your son lives, for the summer, you might want to name him as your agent while there.

There is a growing movement across the country — but not in Arizona — for something called “POLST” (some states use similar-but-different acronyms). That stands for “Physician’s Orders on Life-Sustaining Treatment,” and it is a very interesting and useful form by which you can have a “Do Not Resuscitate” (DNR) order in place before you go to the hospital or nursing home. Arizona has something similar, which is usually referred to as the “orange form” — but Arizona’s form will not work in any other state and no other state’s POLST form will work in Arizona. If you are concerned about resuscitation, you need to have appropriate plans in place in other states where you live part time or visit extensively.

So does all that mean you should have a new health care power of attorney drawn up as you drive across the border into New Mexico, Colorado and each state you go through? Not necessarily.

There’s at least one problem with having multiple forms signed. Under Arizona law, and the law of most states, when there are multiple documents that are internally inconsistent the most recent one is treated as revoking the earlier one. In other words, if you sign a new health care power of attorney as you arrive in Wisconsin this summer, you may have revoked your existing health care power of attorney. When you come back next fall, you’ll need to sign another one. The cycle can be endless, and the year that someone actually needs to make decisions for you will be the year you overlooked the update.

As for travel outside the country — that’s a lot harder to generalize about. In many countries the very concept of advance directives is foreign (that pun was completely intentional). Best advice: look up the country you’re visiting and see what you can find out, and take a copy of your advance directives with you just in case they’ll be helpful.

What should you do about domestic travel? Here are a few thoughts for the itinerant or part-time Arizonan:

  1. Plan for your travel when you first sign your power of attorney. Do you want your daughter to make your health care decisions while you’re here, and your son in Illinois? Tell us and we can draft for that. Do you spend lots of time every year in Virginia? Let us know and we can double-check whether Virginia is particularly problematic (we have — it’s not).
  2. Make sure that you’ve talked with family members about your wishes. Those making decisions for you need to know what you would want. Those NOT making decisions for you particularly need to know — we’ve had lots of cases where the distant family member said, more or less, “Mom NEVER would have said that if she’d been in her right mind.” Tell everyone what you want while you’re clearly still in your right mind, and that will reduce the possibility for conflicts based on where you are, what your documents say (or don’t say) and whose form you used.
  3. In addition to your advance directives, you might want to write some thoughts about end-of-life treatment. The best ones are in your own words, but there are others out there — like the well-known “Five Wishes” document, which you can create, review and pay for online. We would rather you didn’t sign this form, though — we don’t want you revoking your valid Arizona advance directive unintentionally. Customize it, print it out, and bring it with you when you visit us — we can talk through it and adopt those portions you like. Note that even the people who promote Five Wishes identify 8 states where the document does not meet requirements of state law.

If you do travel a lot, or have homes in more than one state, you probably are not a good candidate for a pre-printed advance directive form. If you signed your will (and maybe your living trust), and then filled out a form at the hospital, doctor’s office, church seminar or public forum, we need to see you again — you probably have inadvertently revoked the power of attorney we prepared for you when you first came in. If you haven’t yet gotten around to doing anything about this, get moving. First download the Five Wishes document (see above), or the Arizona health care directive forms, and then make an appointment. Let’s get this done.

(Note: don’t live in Tucson? OK — do everything we say here, but then make your appointment with a local lawyer who knows about this stuff.)

(Further Note: we haven’t said anything here about financial powers of attorney. There is also state-to-state variation in those forms, but the subject is quite a bit more complicated. We’ll take that up in another newsletter one day — when we have more courage and time.)

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