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Legal Documents about the End-of-Life

Dear Mr. Premack: My father has been in a nursing home for six months with congestive heart condition being his major health problem. He thinks clearly and recently talked with my brother and me about his death. This is emotional for us, because he said he does not want life support. He said he wants to see a lawyer about this. We wonder why. What can a lawyer do to help with issues like life support? – O.S.

The medical care system, whether a hospital or a nursing home or a hospice, works within a framework of laws enacted on both the federal and state levels. Your father, like all patients receiving medical treatment, has legal rights that must be honored by the medical care system.

A lawyer comes into the picture to explain those rights to the patient and to create binding legal documents expressing the patient’s personal choices. The medical system cannot provide any care to a patient unless 1) the patient or a legally authorized agent consents to the care, or 2) the law presumes the patient would give consent.

Patients may not realize that the law allows a medical intervention intended to save a life (like CPR) without obtaining consent from the patient. The presumption is that you want your life saved, which is not always true, especially for people like your father.

End-of-life issues can be so emotionally charged that people avoid thinking about them, avoid discussing them with family, and avoid making legal plans. The only thing that cannot be avoided, for any of us, is that the end of life will arrive at some point in time. Planning ahead on certain big issues can be of tremendous assistance.

In Texas, end-of-life legal issues are handled by the Advance Directives Act. It provides two pre-planning opportunities: a “Directive to Physicians” and a “Do Not Resuscitate Order”.

The Directive to Physicians (which was loosely called a “living will” for years) can instruct that a patient suffering from a terminal illness or an irreversible condition will not be put on artificial life support. In a sense, the Directive says “I know I will die of this condition; do not artificially extend my life.”

The Do Not Resuscitate Order (known as a DNR) instructs that if a person’s heart and respiration ceases, there should be no effort to resuscitate using CPR techniques. The essence of a DNR is the idea that “When I have died, do not try to bring me back.”

In fact, CPR can do far more harm than good for nursing home residents. In a study of the results of doing CPR on nursing home residents, fully 89% still died within 24 hours, and another 9% died within 5 days. Only 2% lived longer, and they remained in poor health in their nursing homes. Financially, Medicare spends nearly 29% of all its resources on patients in the last year of their lives.

We all have the right to decide what medical care to accept or to reject. The law presumes we accept CPR unless the patient rejects it using a DNR. A properly trained Elder Law attorney can help the patient make decisions, can help the family understand them, and can make those choices binding with proper legal documentation.



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