End-of-Life Legal Issues

According to a national poll by National Journal and The Regence Foundation, almost two-thirds of Americans have had to make end-of-life healthcare decisions for themselves or a family member, but only half of those respondents felt prepared for the experience.

This is because death is a difficult subject for most people to think about, let alone plan for. However, the consequences of not having an advance healthcare plan in place when faced with end-of-life healthcare decisions can make an already emotional circumstance even more stressful, and can also have some unwanted consequences.

This article gives a summary of advance healthcare planning documents and addresses some of the legal issues related to end-of-life healthcare choices.

Advance Healthcare Directives

Advance Healthcare Directives, also referred to simply as Advance Directives, are legal documents where you can establish your preferences related to various medical treatments in the event that you become unable to make your own healthcare decisions.

Your Advance Healthcare Directives will only go into effect after a physician has determined that you are not able to understand your diagnosis, treatment options or the possible benefits and harms of your treatment options in order to make your own healthcare decisions.

All states have laws governing the requirements for Advance Healthcare Directives and use varying terminology to describe different types of directives.

Types of Advance Healthcare Directives

The following are the most common types of Advance Healthcare Directives.

  • Durable Power of Attorney for Healthcare (also referred to as Health Care Proxy or Health Care Power of Attorney)

A Durable Power of Attorney for Healthcare is a legal document authorizing another person to make medical decisions on your behalf in the event you lose your decision making capacity.

All states have Durable Power of Attorney for Healthcare statutes that reduce the likelihood of a third party challenge to your choice of surrogate healthcare decision maker.

  • Living Will

A Living Will is a legal document which summarizes your preferences for future medical care. At the very least, your Living Will should address your preferences regarding resuscitation and life support.

To be more thorough, you should include your preferences regarding hospitalization, pain control, and other specific treatments such as chemotherapy for cancer treatment, implantable defibrillator for congestive heart failure, tube feeds for dementia, dialysis for renal failure, ventilation for respiratory disease, etc.

Realistically, a Living Will cannot cover all possibilities. However, a Living Will can assist and guide family members or a designated surrogate medical decision maker in making end-of-life decisions for you.

  • Physician/Practitioner/Medical Orders for Life-Sustaining Treatment

Many states have passed legislation that allows patients to indicate their preferences regarding life-sustaining treatment through Physician/Practitioner/Medical Orders for Life-Sustaining Treatment, most commonly referred to as POLST.

POLST forms, signed by a patient’s attending physician or advanced practice nurse, include instructions for health care personnel to follow for a range of life-prolonging interventions. The form then becomes part of your medical records, following you from one healthcare setting to another, including the hospital, a nursing home or a hospice setting.

These forms are most commonly used by people who are seriously ill with life-limiting illnesses or living in a nursing home or hospice. POLST forms are designed to complement Advance Healthcare Directives, which are still necessary to appoint a legal healthcare decision-maker.

Click here to find out about the POLST program in your state.

No Advance Healthcare Directives?

In the absence of any Advance Healthcare Directives,  state default surrogate consent statutes  become effective. These laws grant a person or particular class of people, usually in kinship priority, the authority to make healthcare decisions for you regardless of your wishes.

While the laws vary from state to state, most states give default surrogate consent authority to relatives in the following priority.

  1. Spouse
  2. Adult Children
  3. Parents
  4. Adult Siblings
  5. Nearest Adult Relative

It is important to note that if you have a partner but are not married to that partner, that person has no legal relation to you and would not have authority to make healthcare decisions for you.

If there are multiple default surrogate decision makers at the same level of authority, the most common provision for dispute resolution is for healthcare providers to rely on the decision of the majority. However, legal disputes sometimes still arise in these circumstances.

Disagreements about life and death decisions for family members can tear families apart. Additionally, without Advance Healthcare Directives, it is possible that the relatives chosen by law to make your healthcare choices for you are not the people closest to you, and they may not make the same choices that you would. This is why is is so important to have Advance Healthcare Directives in place before a medical emergency arises.

If you are in need of advance healthcare planning documents, visit our affiliate partner’s website at Standard Legal, or check out other legal document providers here.

The information on this website is intended as general legal information only and should not form the basis of legal advice of any kind. Individuals seeking specific legal advice should consult a lawyer.

Written by 

New Jersey lawyer turned blogger, podcaster and legal changemaker.