The Minimum Bar: Assign a Health Care Representative
The Indiana Presidential Primary is rapidly approaching. On May 3, Indiana residents will have the option to cast a vote for the candidate they favor most (or disfavor least). And this got me to thinking. Imagine that your entire family (your parents, your adult siblings, and your adult children) all had to agree on whom to vote for. As a group, you get a single vote and the only way it can be cast is if everyone agrees with the selection. If your family is anything like mine, this is a nightmare scenario. Things that are never discussed (“You mean you’re a socialist!”) and things that probably shouldn’t be said (“You’d have to be an idiot to support . . .”) would come out and may cause irreparable harm. And who knows, maybe as a group, to your great surprise, you’d end up agreeing to support “that” candidate.
This is analogous to what’s required by the Indiana statute governing surrogate decision-making. If you’re incapacitated and have not legally identified a specific individual to be your decision-maker, the statute requires the whole group (parents, adult children, and adult siblings) to act as the decision-maker. And again, things that are never discussed and things that should never be said, may come out and complicate the decision. And who knows what decision they’ll come to. Do yourself and your family a favor and assign a health-care representative. PDFs of the form are available on the Indiana State website as well as the websites of some law firms. All you need is a witness who is not the person you’re assigning as Health Care Representative.
An Option with More Complexity: Power of Attorney for Health Care
The Health Care Power of Attorney document requires more certification (a notary public must witness the signing of the document) but also allows for more nuance in the directions provided by the document. It can specify who can make health care decisions and under what circumstances. Unlike the Health Care Representative form, which provides a sort of general authorization for someone to make decisions on your behalf, the Power of Attorney for Health Care can be either more limiting or more expansive regarding the situations the named individual can make decisions on your behalf.
An Option with Serious Limits: The Living Will
Living Wills are important documents for every individual to consider for a couple of reasons. First, filling out a Living Will gets you to think about what kinds of treatments you would want in particular situations. It gets you thinking about what it means to live well for you, should dire circumstances arise. Thinking about this and communicating it to your loved ones (and health care representative!) can make the decision process easier for them and can help to ensure that your desires about your treatment at the end of life are respected. Second, Living Wills provide a written record of the decisions you reach and the directions you give.
That said, as a medical order or legally binding document, they are rarely useful in Indiana. The Indiana statute regarding living wills makes the Living Will effective only when “my attending physician certifies in writing that: 1) I have a terminal condition because of an incurable injury, disease or illness; 2) my death will occur in a short period of time; and 3) the use of life-prolonging procedures would serve only to artificially prolong the dying process” (emphasis mine). Because physicians do not certify these kinds of things in writing, the Living Will never comes into play except as a way to inform surrogate decision-makers about your wishes.
An Option with Limited Application: Physician Order for Scope of Treatment (POST)
For nearly three years, Indiana has also had a legally recognized POST form. The form should be filled out by a patient (or their assigned health care representative) in consultation with a physician or their representative. It applies only to patients who are in the twilight of life—their physician would not be surprised if they died in the next 6 to 12 months. It include choices regarding resuscitation (a DNR or AND order), airway interventions (e.g., ventilator placement), artificial nutrition and hydration (e.g. feeding tubes), and the use of antibiotics. It must be signed by both the patient and the physician and provides a medical order for Emergency Medical Personnel and other health care providers about the patient’s preferences regarding treatment.
You can find a lot more information about these forms (and others) here. And if you do nothing else this National Health Decisions Day, please take a minute, assign a Health Care Representative and talk to them about the decisions you’d like them to make on your behalf.