Doctors making efforts re Patients’ end-of-life instructions

This column first appeared in the San Antonio Express-News on June 8, 2018.

Dear Mr. Premack: I am agent under my father’s Medical Power of Attorney. He has Alzheimer’s and now, ironically, has terminal cancer. The doctors have been cooperative with implementing DNR orders while he has been in the hospital, but things get inconsistent about life support when he’s moved back to the memory care facility. Is there a way for me to use the Medical Power of Attorney to get all of these caregivers on the same page about avoiding life support for my father? – C.T.

There is a small but growing movement among physicians to develop a standard approach to end-of-life treatment. Doctor groups have stated that legal Advance Directives are useful and should be encouraged, but that the doctors must then use that legal authority to ensure the patient/agent wishes will be followed.

Nationally, this movement is encouraging doctors to issue what they call “Physician’s Orders on Life Sustaining Treatment” (POLST) or call “Medical Orders for Scope of Treatment” (MOST). These orders are intended for patients with serious illnesses who are expected by their doctor to die within a year, and can be authorized 1) by a competent patient, 2) by an Agent under the patient’s Medical Power of Attorney, or 3) be based on the patient’s valid Directive to Physicians.

These doctor’s orders are intended to travel with the patient, from doctor, to hospital, to care center, to home (along with their foundation Advance Directives). The Order applies to the patient in whatever setting the patient resides. In Texas, the law also requires that there be an out-of-hospital DNR order for the patient in order for EMS to withhold CPR if called to the scene.

The POLST or the MOST form is completed and signed by the doctor after a discussion of the patient’s goals for care, values, beliefs, and prognosis. The doctor should discuss any treatment alternatives, including the benefits and burdens of life-sustaining treatment.

Then the doctor and decision-maker reach an informed decision about how to proceed. Of course, it may be rare to find a doctor who will take the time for this discussion, or who will disclose that CPR is rarely beneficial when applied to a frail elderly individual. If the decision or the patient/agent is to avoid life-sustaining treatments, the doctor’s order specifies which treatments the patient wants and does not want. It gives the patient/agent the ability to specify treatments they consider extraordinary or excessively burdensome, and to avoid those medical procedures.

Although the general POLST form specifies that caregivers should provide ordinary measures to improve the patient’s comfort and to provide food and fluid by mouth, as tolerated, the patient/agent may always decline even those treatments. Texas law still does not allow or condone death with dignity (a competent terminal patient’s desire to end life on their own terms, which is legal in several other states). The goal of using a POLST is to allow death to occur naturally without unwanted medical interventions. The order, again, must be based on the patient’s informed consent, on informed consent from the patient’s Agent, or on the patient’s binding instructions in a Directive to Physicians. For more information, visit www.POLST.org.

Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) is *Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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