Do Not Resuscitate Orders, Living Wills, and Health Care Proxies

Your clients probably have a good idea of what they want to happen to their bodies and estates after they die, but they likely haven’t formed a plan of action for when they are still alive but are unable to make decisions for themselves. A medical directive can help a client determine how health care–related decisions will be made in the event that the individual can’t make those decisions alone.

There are multiple ways a client can guide the medical decision-making process, depending on the specific scenario to be addressed. A do not resuscitate (DNR) order allows a patient to limit the ability of emergency responders and health care providers to provide cardiopulmonary resuscitation (CPR) if the individual stops breathing or if his or her heart stops beating. Living wills document a patient’s preferences regarding medical care in case that person becomes unable to decide whether to accept or refuse treatments. Health care proxies are forms that allow clients to select delegates to make decisions concerning their care if they cannot make these decisions. Do not intubate (DNI) orders prevent health care providers from inserting breathing tubes into a patient’s nose or mouth. Physician orders for life-sustaining treatment (POLST) are supplemental medical directives that allow patients to dictate decisions that may not be covered by other directives, including those related to comfort care, requests not to be transferred to an emergency room, and requests not to be admitted to a hospital.

Because DNR orders, living wills, and health care proxies are the most common decision-making mechanisms, this article will primarily focus on those.

A Brief Overview of Each Mechanism

DNR orders. DNR orders are fairly limited in scope; they govern only the administration of CPR. When we think of CPR, we traditionally think of mouth-to-mouth breathing and cardiac compressions—the classic lifeguard rescue routine. CPR, however, also includes restarting the heart by using electricity or medication, inserting tubes into the chest, and administering medications that increase blood pressure in the event that it drops suddenly. DNR orders cannot be used to control other health care decisions, such as comfort care, artificial nutrition and hydration, and antibiotic or antiviral medicines. Even when a client does have a DNR order in place, emergency responders can still perform CPR on the individual in limited scenarios. Responders may perform CPR regardless of a DNR order when the order is not recorded in writing, the responders are unable to locate the order, the validity of the order has been called into question, or the client’s heart or breath has stopped because of emergent causes, such as trauma or a sudden blockage in the airway.

Living wills. Living wills can cover a much broader spectrum of medical decisions than DNR orders can. In addition to prohibiting CPR, clients can use living wills to direct decisions regarding comfort care, artificial nutrition and hydration, antibiotic and antiviral medicines, and medical ventilation. In some states a patient can use a living will to direct religious practices, including whether that person should be buried or cremated, whether he or she will donate organs, and whether he or she should be cared for and/or die at home or in a hospital or nursing home.

Health care proxies. A health care proxy allows a client to select a trusted person who will make medical decisions on his or her behalf after he or she is no longer able to make those decisions. Clients are able to limit the decision-making power of the delegate, as well as provide guidance on what decisions should be made in certain scenarios, but, generally, the delegate will have broad decision-making power when the form becomes effective. Because of this, it is important to make sure the patient trusts the person who will be chosen to honor his or her wishes. Proxies are especially handy when the client does not trust or wish to be controlled by the person who would ordinarily become the decision-maker under state default guidelines. For example, an unmarried patient may still prefer that his or her partner become the decision-maker in the event he or she becomes incapacitated. Individuals can usually designate alternate proxies who can step in if the proxy of choice is unable to make the necessary health care decisions.

A new trend. Many states are combining living wills and health care proxies into a single, streamlined directive. Clients can use one comprehensive form to select a proxy, limit what decisions that proxy is able to make, and control care-related matters such as who the primary physician is, whether or not the patient’s life should be prolonged, when comfort care should be withheld, and whether the person will donate organs. Clients can even select the purposes for which they are willing to donate organs, including transplants, therapy, research, and education. States that are adopting this innovative mechanism must specify how it interacts with other directives. For example, legislation that implements this new instrument may specify that it replaces living wills, proxies, or both as of the date it goes into effect.

Comparing the Mechanisms

Just as DNR orders, living wills, and health care proxies are designed to address different situations, they are subject to different requirements, limitations, enforceability across jurisdictions, effective dates, and methods of revocation.

Requirements. DNR orders simply require the signatures of the patient requesting the order and the health care provider. Some states require a physician to sign as the health care provider, while in other states nursing practitioners and physician associates are also qualified to sign. Living wills often require the signatures of the client and two witnesses. In some states a person can choose to have the living will notarized rather than having the two witness signatures. Other states have expanded signature requirements. For example, states may require that one witness is not a spouse or blood relative of the client. If the patient is in a skilled nursing facility, the living will may require the signature of a patient advocate or ombudsman. An individual who is physically unable to sign the living will may be able to direct a witness to sign for him or her if the witness signs the document in the client’s presence. Health care proxies generally need to be signed by the patient in the presence of two witnesses, who must also sign.

Limitations. DNR orders are, by their nature, limited to CPR; they do not allow patients to make other health care decisions. When it comes to living wills, some states limit what decisions an individual can direct. For example, in some states a client may not be allowed to direct health care providers not to administer maximum pain relief, even if receiving this pain relief hastens the patient’s death. Proxies are subject to even more variation—in addition to patients limiting the health care decisions a delegate can make, states often impose their own limitations. Whereas some states have removed an agent’s ability to consent to or refuse artificial nutrition and hydration unless that agent reasonably knows what the patient’s wishes are for these treatments, other states give a delegate broad discretion to make any decisions that are necessary to carry out the best interests of the patient. Yet even in these laissez-faire jurisdictions, agents can’t simply make any decisions they want; if a client has previously expressed a preference related to a specific medical treatment, the delegate is usually required to honor that preference. On most proxy forms clients are able to explicitly state certain preferences, such as what treatments should be refused and which treatments the person wants to ensure are administered if those treatments become applicable.

Enforceability across jurisdictions. DNR orders have a highly restricted zone of applicability. They are often not honored from one state to another. Hospital DNR orders (which are orders that are granted while a patient is in a hospital or nursing home) do not expire as long as the patient remains in the care of the hospital or nursing home, but they no longer apply once the patient leaves the hospital or nursing home. Non-hospital DNR orders (which are orders that are issued when a patient is at home and has given verbal consent to his or her physician) apply to emergency medical responders and other emergency room personnel, but they automatically expire after 90 days and must be renewed by a physician. Living wills and proxies are usually recognized in other states, especially if the instrument was signed in compliance with the laws of the state where the client is seeking to have it recognized. Some states will recognize a living will or health care proxy signed in another state as valid as long as it was signed in compliance with the laws of the state where it was created.

Effective dates. DNR orders are technically effective upon creation, with the exception of the 90-day expiration date for non-hospital DNR orders. State laws govern when living wills become effective, such as when a patient is diagnosed with a terminal illness, enters a persistent vegetative state without a medical probability of recovery, or is at the end of life and is unable to communicate medical preferences. Health care proxies do not go into effect automatically but become effective upon the occurrence of an event specified in the proxy, which is often when a doctor has determined that the patient is no longer capable of making decisions.

Revocation. DNR orders can be revoked by communicating to a physician that the patient wishes to revoke the orders. Proxies and living wills can typically be revoked by destruction of the original document, an oral expression of the client’s intent to revoke the instrument, or by the execution of another instrument that serves the same purpose. Some states require that the later instrument be materially different from the original in order to revoke the original. While proxies are generally valid indefinitely, a person can limit the duration of a proxy by specifying a date or event upon which the proxy will become invalid. When an individual has selected a spouse as a proxy, divorce or legal separation will often nullify that selection unless the written instrument specifically states otherwise. Advance directives that combine living wills and proxies can often be revoked or replaced at any time in the same ways as their counterparts.

What Happens When a Client Doesn’t Have a Directive?

It is a good idea to urge your clients to have at least one health care directive—if not multiple directives—in place. Because different treatments invoke numerous legal questions, such as whether a patient’s life is being sustained or whether the patient’s comfort is merely being enhanced, medical decisions are subject to varying levels of scrutiny when brought before the courts. Without a DNR order in place, a guardian must be able to show that the order would be in the best interests of the patient in order to prevent resuscitation. A legal guardian is appointed by the court. First, a petition identifying the proposed guardian and that person’s relationship with the potential ward must be filed with the state; next, there is a hearing on the matter. The guardian can but need not be a professional who is unrelated to the ward. For a minor, the court will only appoint a guardian if it is in the best interests of the child—the child, parents, and potential guardian are interviewed. For a guardianship proceeding concerning elderly or incapacitated adults, the potential ward has a right to legal representation. Courts may also make DNR determinations for minor patients who are wards of the state and not mentally developed enough to make decisions for themselves.

Without a living will, proxy, or other form of advance directive, it is often the patient’s spouse or closest biological family member who will be tasked with making medical decisions. This decision-maker only has the authority to make health care decisions where there is clear and convincing evidence that the patient would have wanted those decisions to be made. Without such evidence, even a patient’s spouse or parents cannot direct the withdrawal of life-sustaining treatment. For incompetent patients, the substituted judgment standard (where a court determines what the patient’s choice would have been) replaces the clear and convincing evidence standard. The best interests standard applies to infants, children who have not formed opinions about medical treatment, and patients who have been and will always be unable to express a preference concerning medical treatment. The court will apply the substituted judgment and best interests standards to challenges to decisions made by legal guardians as well as parents and other family members.

Conclusion

DNR orders are extremely limited, both in their geographic scope and in their scope of treatment. Living wills allow a client to address a broader spectrum of concerns than DNR orders, but these decisions are subject to the limits imposed by state law. A health care proxy allows a trusted person to make a wide range of medical decisions on behalf of a patient, which can allow for decisions to be made that were not addressed by other directives, but these decisions can also be limited by the state. Where a state combines living wills and proxies or utilizes POLST, these measures should be used to ensure that the client is getting the most comprehensive health care directive plan possible.