July 21, 2015

Advance Directives and Other Legal Documents for Seniors and Caregivers

By Pamela Spahr, Contributing Writer | The Caregiver Legal Documents for Seniors

As my husband Bob’s caregiver, I thought I was covered legally for his end-of-life care as well as my own. But after learning more from legal and healthcare experts about the medical documents everyone should have and what happens after a loved one dies, I realized I was missing some important things.

There are several critical documents older people should understand, fill out and review periodically as they approach the end of their lives. It’s also important for their families to know about their wishes. I have heard of many cases where parents want one thing but their sons and daughters want another, or worse, when siblings fight over several different options for their parent’s care.

Legal healthcare and end-of-life documents all seniors should consider

Most of us want to have control over end-of-life care that may happen when we are too ill to make decisions. If elders have clear care documentation and their family understands their wishes, their decisions will be honored in most situations. Here’s a look at the documents all seniors should know about.

Advance directive

The Mayo Clinic defines an advance directive as “written, legal instructions regarding your preferences for medical care if you are unable to make decisions for yourself. Advance directives guide choices for doctors and caregivers if you’re terminally ill, seriously injured, in a coma, in the late stages of dementia or near the end of life.”

A living will is a type of advance directive. Typically, two physicians must certify that a patient is no longer able to make medical decisions before an advance directive can be used to guide his or her care.

DNR (Do Not Resuscitate) form

In California, where I live, the full name of a Do Not Resuscitate (DNR) form is “Prehospital Do Not Resuscitate (DNR) Form” and reads, in part, “I understand DNR means that if my heart stops beating or if I stop breathing, no medical procedure to restart breathing or heart functioning will be instituted.”

According to the California Medical Association, the form was created to inform emergency medical service personnel of a person’s decision to forgo the following resuscitation methods if he or she goes into cardiopulmonary arrest:

  • Chest compressions
  • Assisted ventilation
  • Endotracheal intubation
  • Defibrillation
  • Cardiotonic drugs (such as epinephrine)

DNRs do not apply to life support or palliative measures such as feeding, hydration and pain relief. A do-not-resuscitate form must be signed by the patient (or his or her “legal healthcare decisionmaker” in the event the patient is unable to communicate) and their physician. The DNR becomes part of a person’s medical record.

Although DNRs are meant for use in nonhospital settings such as the patient’s home or assisted living facility, California law protects healthcare workers, including emergency medical technicians (EMTs), who follow a properly completed DNR from criminal prosecution and civil liability. I believe all older people, along with their spouses and caregivers, should review the DNR laws and requirements in their state so they are clear about their choices.

POLST

The acronym POLST stands for “Physician’s Order for Life-Sustaining Treatment.” This is a document specifically for California. Similar forms are available in other states. A POLST has three straightforward options for care:

  • Comfort measures only
  • Limited additional interventions
  • Full treatment

Like a DNR form, a POLST must be signed by the patient (or his or her healthcare proxy) and the elder’s doctor.

First responders and advance directives, DNRs and POLSTs

Even though someone has an advance directive, DNR or POST, if something happens while they’re away from home and those documents are unavailable, first responders are required by law to give all the help they can until notified to the contrary.

In most states, patients can use a copy of their DNR to order an official neck or wrist medallion that informs healthcare providers of their wishes. I plan to get a DNR bracelet for my husband. It will say “DNR — POLST — Comfort Only.” That should at least get him to a hospital, where I can produce the documents medical personnel need to confirm his wishes.

Will

I think everyone is familiar with a last will and testament, an official document that directs the distribution of assets after a person’s death. Families of people who die without a will must go through their state’s intestacy procedures to determine who gets the deceased’s property, cash, retirement and investment accounts and insurance policies. To spare their survivors this long and complicated process, it’s wise for every adult to make a will and review it periodically. As I mentioned above, the term “living will” is the same as an advance directive.

Revocable living trust

Some people prefer to have a living trust instead of a will. AARP defines a revocable living trust as a “written agreement designating someone to be responsible for managing your property.” Living trusts are created while you are alive and are ‘revocable’ because they can be dissolved or altered as long as you’re mentally competent, but cannot be changed after you die. The difference between a living trust and a will is that although both can be contested, the contents of a living trust are never made public.

Durable power of attorney for healthcare

There are generally two powers of attorney that apply to seniors: general power of attorney and durable power of attorney for healthcare. A general power of attorney allows someone else to make financial, legal and healthcare decisions for their loved one.

The National Hospice and Palliative Care Organization describes durable power of attorney for healthcare as a “medical power of attorney (or healthcare proxy) [that] allows you to appoint a person you trust as your healthcare agent (or surrogate decision maker), who is authorized to make medical decisions on your behalf.” I was surprised when one authority suggested that seniors should nominate a secondary proxy in case the primary proxy predeceases them or is unavailable when needed.

Organ donor designation

An organ donor designation specifies that in the event of his or her death, a person chooses to donate their usable organs, eyes and tissues. Anyone in the U.S. can sign up to be an organ donor through their local Department of Motor Vehicles.

Although it’s easy for many of us to make the decision to donate, families may hesitate if they’re asked for a decision on organ donation right after a loved one has a catastrophic injury. Therefore, a potential organ donor should make his or her wishes clear to spouses, partners and children.

Family buy-in for end-of-life decisions

The death of an elder can bring a family closer together or create additional suffering. The more legal documents an older person has that clearly express his or her wishes, the less likely it is that family members will misinterpret them. Of course, there is no guarantee that a death will not cause acrimony.

Seniors should talk in-depth to their families as well as their healthcare providers about their end-of-life preferences. These decisions can also be discussed with close friends, a minister, rabbi, or other spiritual leader. The more people who know, the more likely it is that there will be a successful consensus.

This is not a complete list of documentation that elders need for end-of-life care, and each state has their own forms and official channels of notification. My advice for spouses or caregivers who have questions is to contact a lawyer in their state — preferably an attorney specializing in elder law — who can help them determine what they need to ensure that their loved one’s wishes are observed during all levels of end-of-life care.

Pamela Spahr, the founder of Inspired Caregivers and the author of the eBook, “Caregivers Survival Toolkit,” is an expert in behavioral and emotional techniques designed specifically for caregivers to those with cognitive impairment. She coaches caregivers and teaches her techniques to family and professional caregivers around the United States.

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