Advance Health-Care Directives (Part 2) (August 2011)


In last month’s column I explained that Advance Health-Care Directives have two parts.  One part is a “Durable Power of Attorney for Health Care Decisions.”  It lets you name the person who will make medical decisions for you if you can’t make your own decisions.  The other part is a “Living Will.”  It lets you decide whether you want your life prolonged after you are no longer able to communicate.

I often see a problem with Advance Health Care Directives.  By signing the standard form without customizing it, you are saying that your agent can make all decisions for you, but you are also making your own end of life decisions.  That is a conflict.  You should either have your agent make the end of life decisions, or you should make them, not both of you.  That is why we prepare the Advance Health Care Directive for our clients, rather than having them sign one at the hospital.

I once read an article entitled “Living Wills Don’t Always Work – Or Get Followed.”  The article mentioned a physician in the mainland who had a heart attack.  He had a living will.  His wife, who also was a physician, knew it was too late to save him.  She told the emergency room doctor to stop resuscitation attempts.  He wouldn’t listen to her.  It took her 29 hours to convince them to remove the life supporting equipment. 

If this happened in Hawaii, I believe the result would be the same.  The standard living will says: “I do not want my life to be prolonged if . . . I have an incurable and irreversible condition that will result in my death within a relatively short time.”  When paramedics first arrive to help someone who has collapsed, they don’t know if the condition is “incurable.”  They don’t know if the condition will result in death “within a relatively short time.”  Therefore, the living will does not apply.  They will do all they can to help the person to live.  Even in the emergency room, it may take some testing and some time before they can determine whether the condition is incurable.  That is why they ignore the living will.  They have to.  They don’t want to sit back, let the person die, then risk being sued by the family for not saving the person’s life.

Therefore, you should not expect the living will to be followed until the crisis is over and the doctors are reasonably sure that the patient will never regain consciousness.

If you do not want to be revived when your heart stops beating, then you need a document different from a living will.  You need a “comfort care only” document.  The law used to provide that you can get this only if your doctor certifies that you are terminally ill.  However, in 2006 the Hawaii legislature changed this law.  Now, you can have a “comfort care only” document even if you are not terminally ill.  It has to be signed by you (or, in some cases, by your agent) and by two adult persons who personally know you.  The “comfort care only” document says that you should not be given chest compressions, rescue breathing, electric shocks or medication if your heart stops beating or if you stop breathing.  The old law also required that you wear a “comfort only” bracelet or necklace, but the new law only requires the legal document.  When emergency personnel or other health care providers see the document, they are not supposed to revive you.  But the law gives them an out.  If their own safety or the safety of others requires them to revive you, they may do so.  Also, if a health care provider’s own conscience requires him to revive you, he may do so. 

It is possible that many doctors don’t know about this “comfort care only” law.  If you want to be sure that your Advance Health Care Directive is followed, tell your loved ones to insist that the doctors honor it.  If you have a “comfort care only” document, you might even tell your loved ones to delay calling the rescue squad if your heart stops beating.  We have a right to leave this life peacefully.  We need to ask our loved ones to help us enforce that right.

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