The Best Advance Directive is a Medical Power of Attorney
A Living Will (often called a Directive to Physicians) directs physicians to use or not use certain treatments and/or tube-feeding in the event of a future illness or injury. It is impossible to foresee what you may want or need in a future situation. Thus a Living Will, which is a legally binding document, is based on mere guesswork. This is dangerous.
A case in which I was involved in 2005 illustrates this point. A young soldier suffered a severe brain injury while serving in Iraq. Before going to Iraq, he had signed a Living Will in which he had checked a box indicating that he would not want artificially provided nutrition and hydration (tube-feeding) in the event he became terminally ill or permanently unconscious. His wife insisted that nutrition and hydration be withdrawn and a doctor mistakenly determined he was permanently unconscious. This young man was admitted to a hospice for “comfort care” while being starved and dehydrated to death. A family member called me, desperately asking what they could do to save her loved one’s life. She said that, while he was in a rehabilitation facility, he would squeeze a ball with his hand. When he dropped it, he would pick it up by himself and continue with therapy, showing a determination to get better. His best friend told a reporter that he was responding “yes” or “no” to questions and nodded “yes” when asked if he wanted to live. But because, before he was injured, he had checked a box in his Living Will indicating no tube-feeding, his fate was sealed.
Living Wills are fatally flawed.
The wiser choice: a Medical Power of Attorney
A much better choice is a Medical Power of Attorney in which you appoint a trusted family member or friend to be your “agent” (called a “proxy” in some state advance directive laws). Your agent will make medical decisions for you in the moment of need if you are unable, either temporarily or permanently, to do so for yourself.
Your agent will endeavor to honor your values and wishes while basing medical decisions on current information—your medical condition, treatment options, and likely outcomes—provided by medical professionals. Research is constantly producing new treatments that reverse serious conditions. You cannot know today what treatments will be available tomorrow. This is just one reason why appointing an agent to make your medical decisions in a future situation may save your life.
It is important that you discuss your wishes and principles with your agent when you sign your MPA and periodically thereafter. Your perspective may change as your circumstances change. For instance, it is not unusual for healthy people to imagine that certain medical treatments would be intolerable, but then change their minds when faced with life-threatening conditions. ii On the other hand, some people, when their health is declining, may wish to limit or forgo medical treatment that they previously said they would want.
A Medical Power of Attorney is a necessity for anyone who is 18 years old or older. To be certain a person you trust will make medical decisions for you if you become incapacitated due to an accident or illness, you must specifically name that person in a legal document.
The standard MPA, however, presents problems because it uses the same language as does a Living Will and it permits an agent to make decisions that will directly cause a person’s death. Both documents can be interpreted to mean “I don’t want to live” under certain circumstances, which may not be what you meant when you signed your advance directive or what you’d want in the event you are unable to communicate your wishes.
Should you become seriously ill or injured and unable to speak for yourself, your greatest advantage will be a tenacious agent committed to protecting your best interests. Your next of kin may not be that person. If you haven’t spoken to someone you would trust with your life about being your medical decision maker in a time of crisis, consider having that conversation today.
Do your best to choose an agent who (1) genuinely respects human life and is capable of making morally sound decisions, (2) will ask questions in order to base decisions on the best medical information and advice available, (3) will seek a second expert opinion, spiritual counsel or legal advice when necessary and (4) will not be easily intimidated by medical professionals or medical terminology.
Next, choose a Medical Power of Attorney document that is carefully worded to ensure that no one, not even your agent, has the authority to approve the direct and intentional ending of your life. The Protective Medical Decisions Document (PMDD), drafted by the Patients Rights Council, fits this description and is the MPA that HALO most often recommends. iii
The PMDD states, “I direct that food and water (nutrition and hydration) be provided to me unless death is inevitable and truly imminent so that the effort to sustain my life is futile or unless I am unable to assimilate food and fluids.” This document also directs “that my life not be ended by assisted suicide” or “by euthanasia.” And, to preclude misinterpretation of your directions, the PMDD specifically states that the meanings of words used in this document are “those which I have discussed with my agent.” When you sign a PMDD, you are giving your agent sole authority to interpret what you mean by the words used in it.
The wording of a Medical Power of Attorney is critically important and must comply with the laws of your state. The PMDD is available in state-specific versions, which is another reason HALO endorses it.
When a patient is admitted to a health care facility, they are asked if they have an advance directive. If the answer is “no,” they are offered one then and there. Being admitted to a health care facility is often a stressful event and there are many papers to sign and questions to answer. This is not an ideal circumstance for scrutinizing a legal document with life and death consequences. It is wise to plan ahead so you have your own thoughtfully prepared Medical Power of Attorney in hand when you arrive at the emergency room or admission desk.