By Attorney Maria Baler (February 2013)
Although it may be difficult or uncomfortable to discuss the type of health care you wish to receive should you be impacted by an accident, a terminal illness, or circumstances that may warrant skilled nursing care, nevertheless it’s important to make your wishes known while still healthy and independent. When a person is unable to give clear direction about his or her care because of illness or incapacity, the circumstances for the patient and family are even more difficult. Here are five ways to increase the likelihood that your wishes will be met.
1. Create a Health Care Proxy. If you are unable to make health care decisions for yourself, who will do that for you? A Health Care Proxy is the legal document we use in Massachusetts to appoint a person (your Health Care Agent) to make health care decisions for you if your doctor determines that you are unable to do so. This is sometimes called an Advance Directive. If you do not have a Health Care Proxy and your doctor determines that you are unable to make decisions about your treatment, a legal guardian will need to be appointed by the Court to make those decisions for you. A guardianship proceeding is time consuming and expensive, and gives you little or no control over who the Court names to make health care decisions for you. The best way to ensure that your wishes are carried out is to create a Health Care Proxy naming a person you trust to make medical decisions on your behalf. When you create your Health Care Proxy, make sure you give a copy to your doctor and your Health Care Agent. A Health Care Proxy can be prepared for you by an attorney, or forms are available on the website of the Massachusetts Medical Society (www.massmed.org).
2. Sign a HIPAA Authorization. A HIPAA Authorization lists the people who are authorized to speak with your caregivers about your health and your health care. The people listed are given permission to receive information but they are not decision makers. Any decision-making about your health care is done only by the Health Care Agent you have named in your Health Care Proxy. Signing a HIPAA Authorization will ensure that friends or family members you want to stay fully informed about your medical condition will have the legal ability to do that, so they can assist you or provide input to your Health Care Agent if necessary.
3. Write a Living Will or other Instructions. A Living Will is a document that specifically addresses life-sustaining treatment, and typically states a person’s wish to not be kept alive by artificial means if they have an incurable condition and are not expected to recover. In Massachusetts, Living Wills serve as an expression of your wishes that your Health Care Agent can refer to when making health care decisions for you. If you do not want your life to be prolonged by artificial means, it is important that you let your Health Care Agent know how you feel. A Living Will is a simple and effective way to do this.
4. Have a Discussion with your Doctor. In order to give appropriate direction about your wishes you must first understand the situations you may be faced with, the types of decisions that must be made by your health care decision-makers, and your treatment options. A conversation with your doctor is a good way to start thinking about these issues and making decisions that are right for you given your age and health. On the subject of end-of-life planning, Massachusetts has begun a public education campaign about the need for advance end-of-life care planning, including MOLST (Medical Orders for Life-Sustaining Treatment). Medical staff are being trained on discussing these issues with patients and assisting them to complete a MOLST form. This form translates patient preferences about certain medical treatments into formal medical orders that can be honored by health professionals across various care settings (i.e. home, hospital, nursing home).
5. Speak to your Health Care Agents, Family, Clergy, and Others. Although it is important that your doctor knows how you feel about your health care, it is equally important that you communicate those wishes to your Health Care Agent and family members. Having these discussions before an urgent situation occurs is always preferable than having to do so in a crisis. Your family members are most likely to be the ones who will be by your side in an emergency or urgent health care situation. One of them may be your Health Care Agent, who should be able to give clear direction — with the assistance of medical personnel — about the care you should or should not receive. If you have spoken to your family members ahead of time, they will share a similar understanding of your wishes, which may make your Health Care Agent’s job easier and reduce the possibility of disagreement among them.
Take the time to think about the type of health care you would want and where you would want to receive it, speak to your family and your doctor, and put the appropriate legal documents in place. If you take these steps now, while you are able to do so, you will greatly increase the chances that you will receive the type of care you want where you want it, which is what all of us hope for and deserve. For more information specific to end-of-life planning, see www.theconversationproject.org and www.molst-ma.org.
Attorney Maria C. Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information, visit www.ssbllc.com or call (781) 461-1020.