Monday, March 28, 2005

The Difference Between Living Wills and Durable Power of Attorney for Healthcare

Last week, Bill O'Reilly interviewed a bioethicist to discuss some of the ethical implications of the Schiavo case. At the end of his interview, O'Reilly advised all of his listeners to make sure they have a living will and he attempted to get confirmation of this strategy from his guest. When his guest, an expert on such issues, denied having one himself, O'Reilly criticized him repeatedly without letting him explain his reasons although he certainly tried.

I thought that I'd write about this because O'Reilly's refusal to sit back and allow himself and his listeners to be educated really got me yelling at the TV.

Click here for complete entry.
Last week, Bill O'Reilly interviewed a bioethicist to discuss some of the ethical implications of the Schiavo case. At the end of his interview, O'Reilly advised all of his listeners to make sure they have a living will and he attempted to get confirmation of this strategy from his guest. When his guest, an expert on such issues, denied having one himself, O'Reilly criticized him repeatedly without letting him explain his reasons although he certainly tried.

I thought that I'd write about this because O'Reilly's refusal to sit back and allow himself and his listeners to be educated really got me yelling at the TV. In researching it (to make sure I'm not saying something wrong or stupid) I came across today's entry in the excellent blog Abstract Appeal run by Matt Conigliaro:
I've heard a certain "powerful" television host say repeatedly that he's written his wishes down and that's the end of it for him, and had Terri done so it would have been the end of it for her, too. I'm going to explain why he's wrong. Someone should. May as well be little ol' me.
I've looked all over his site and can't find his answer. Perhaps he hasn't written it yet. Until he does, maybe my response will clarify this issue. When he posts his, I'll link it because I've no doubt his explanation will be more authoritative than mine!

Basically, a living will is a document written to give guidance about what should be done on the author's behalf in the event that he is unable to make medical decisions on his own. They're easy to get. You don't need a lawyer and they carry legal weight. The problem is, every situation is different and to draft a comprehensive document for all eventualities is virtually impossible.

There are simply too many parameters and end-of-life issues are far too complex. If you simply say "I don't want to be kept alive artificially if it looks like I'm not going to improve," is that enough? Not likely.

What does "if it looks like I'm not going to improve" mean? Medicine lacks certainty. What we're left with are probabilities. Is a 99% chance of improvement worth living for? A 1% chance? What about all the probabilities in between? Do you really want to specify such a probability in your living will?

And how much improvement do you require? Enough to walk and talk? Enough to run a marathon? Or just enough to breath on your own?

How much time do you want to give your doctors and family to establish whether you're going to get better or not? A few days? years? Again, do you really want to commit yourself in writing to a specific duration? And what if you begin to show signs of improvement? Would you want there to be a provision for altering this duration?

As you can see, the number of possibilities is virtually endless. Trust me, I've seen it. What seems very reasonable in a lawyer's office can seem incomprehensible when a medical crisis arises.

So what is the solution? A durable power of attorney for healthcare (DPAHC).

Basically, you pick a trusted family member or friend (often a spouse) to make medical decisions when you yourself are unable to. The advantage of this over a living will is that rather than consulting an obscure legal document, the medical staff has a sentient being to make decisions. The theory is that if you discuss in detail your feelings, philosophies, religious convictions, worries, etc. with the surrogate selected by the DPAHC, that person can acquire a gestalt for your true desires. They can then address medical issues real-time as they change. A DPAHC is therefore much more flexible than a living will.

For these reasons, I believe most bioethicists and attorneys experienced in such matters recommend a DPAHC over living wills. I will say that it's perfectly reasonable to put your thoughts on paper in the form of a living will for reference. But the actual decision-making should come from a living, breathing person who is capable of adapting to changing clinical situations.

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4 Comments:

Anonymous kat-missouri said...

doc, I was just writing the same thing over at my new blog (well, second blog) http://medicalinsuranceguru.blogspot.com

I tried to specify what each one was for and why you would want to have both. And, it is for just this reason that I talk about having both. You did a good job explaining it. The written format is just to stark and black and white. One of the things I've found in dealing with people is that, when most people think of living wills or health directives, they are thinking that this is an "end of life" document.

In otherwords, they believe that the thing that will happen to them will to be either instantly dead or in a persistant vegetative state, slightly dissimilar from the Schiavo case, where they are unconscious, eyes closed, unable to respond to any stimuli, paralyzed, with a respirator, a heart monitor and about a hundred other things sticking in or out of them.

Most people do not imagine themselves as still alive, but less functional or less of "them" like mentally disabled from head trauma. That's why people who talk about "pulling the plug" should have a much deeper conversation with their family or agent (DPoAH).

Also, something many people don't know is that their medical insurance carrier (ie, blue cross, Medicare, Medical Assistance, Aetna, etc) will not speak to anyone in their family about their health insurance, outstanding claims, pending authorizations for service, etc, not even their spouse, unless:

a) They are incapacitated or deemed incompetent and a guardian is appointed by the courts

b) The person has a Durable Power of Attorney for Healthcare and it is on file with these entities.

these rules have existed for a long time, particularly with Medicare, but have only really begun to be enforced by the new HIPPA act (I know, the "act" is redundant if you know what the letters stand for).

This is of particular interest for the elderly or the chronically ill whose family or a friend is trying to help them with their bills, arrange medical care, run the gauntlet for them with specialized tests and authorizations, etc.

Some companies might be a little more lenient with a spouse, but it is not supposed to work that way. Health insurance and claims contain private information that is protected, even from a spouse.

So, if someone is very ill or very elderly and needs assistance (even in a lesser situation than terminally ill, incompetent or incapacitated), they have to file a DPoAH with these entities. It is not enough just to obtain one and TELL people.

Also, it must be a DPoAH and not just a regular financial power of attorney because this is about diagnosis, treatment and other health information deemed "private".

I have more information on its usefulness on the blog.

March 29, 2005 12:11 AM  
Blogger Henry Stern, LUTCF said...

.
Excellent points, Kat, and appreciated.

But...

Not ALL carriers require DPoAH to answer claims questions or resolve these issues. Each carrier interprets HIPAA in whatever manner their legal dept requires. For example, at least one MAJOR carrier requires only that the spouse verify (verbally) that he/she has the insured's authorization, and supply the insured's DOB. [In case you're wondering, I just confirmed that with the carrier]

OTOH, I see no *downside* to the DPoAH; so why not have it, too?

I do have one minor quibble: it's HIPAA, not HIPPA (probably just a type, no big deal)

Have a great rest of the week!

March 29, 2005 9:31 AM  
Anonymous kat-missouri said...

Thanks..it is HIPAA. that's what I get for blogging in the middle of the night!

You're right, some payers will deal with you as a spouse. They will at least tell you if something is pending or unpaid claims by date. Particularly, if you are also one of the dependents on the policy.

However, they are not supposed to share things like diagnosis and such (many payers still have a difficult time knowing exactly where the line is drawn and how much info they give). But, Medicare absolutely will not deal with you unless you are the DPOAH ON file.

Dealing with medical records and case management folks will still require DPOAH. So, you are correct, not every payer applies it as stringently as the next.

March 29, 2005 9:53 AM  
Anonymous Anonymous said...

Healthcare Proxies vs Living Wills A health care power of attorney is a legal document that appoints a person of your choice as your authorized agent; your living will can also serve as this document. You can modify or make a will as long as you are of sound mental health and over the age of 18 years old.

Living Wills

November 25, 2006 3:01 PM  

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