Cindy Jamison Program Coordinator WV Center for End-of-Life Care

Goals At the completion of this program, the participant will be better able to: properly complete and implement Medical Powers of Attorney and Living Will forms perform the process of surrogate selection understand when and how to complete a DNR and POST form

Troubling Case Mrs. Jones, an 85-year old woman, is admitted to the hospital from home with her 4th bout of acute pneumonia in a year. She immediately goes into respiratory arrest in the ED and is placed on a ventilator. Her entire family - her 90-year old husband, six adult children and spouses, and twelve grandchildren - arrive at the hospital and are in the waiting room. One of her daughters is a nurse at the hospital. The family thinks she has an advance directive but can’t find it at home. No conversation between Mrs. Jones and her family has ever taken place about her treatment wishes. Mrs. Jones has a loving family that only wants the best for her – including making her medical decisions. Now What?

WV Health Care Decisions Act Protects patients’ right to make own health care decisions Promotes advance directives Reduces court involvement Defines legal protection for those who uphold provisions of Act

Types of Advance Directives Medical Power of Attorney (MPOA) Living Will DNR Card POST Form NOT MEDICAL ADVANCE DIRECTIVES: Health Care Surrogate (HCS) Durable Financial Power of Attorney - However, always read them. They may contain medical decision-making language! If so, it can be used

Medical Power of Attorney Representative (MPOA) Definition: A person 18 years or older, who is appointed by another individual to make health care decisions for the individual.

MPOA Who Can Complete a MPOA? Any competent adult What Does it Take? Must complete a form which is in substantial compliance with the law Must have form witnessed by 2 adults Must have form notarized by a notary public

MPOA Witnesses A Witness May Not Be…. Person being appointed MPOA Person who signed the MPOA or LW on behalf of or at direction of principal Related by blood/marriage Entitled to any portion of estate Financially responsible for principal’s medical care Attending physician

Who Can Not Serve as MPOA? Principal’s treating health care provider Employee of a treating health care provider Operator of health care facility serving the principal Employee of the operator of health care facility serving the principal unrelated to the patient

Authority of MPOA Make health care decisions Access medical records Authorize release of medical records to third parties Make decisions regarding autopsy and organ/tissue donation

Living Will Who can do one? Any competent adult What does it Take? Must complete a form which is in substantial compliance with the law Must be witnessed by 2 adults Must be notarized by a notary public

Living Will Witnesses May Not Be: Person who signed the MPOA or LW on behalf of or at direction of principal Related by blood/marriage Entitled to any portion of estate Financial responsible for principal’s medical care Attending physician

Reciprocity Living Will or MPOA executed in another state is valid as long as executed in compliance with laws of WV or with laws of state where executed

DNR Card Notes DNR status of the person Requires: Patient’s (or Rep’s) name, Address, DOB, Gender, Signature Physician Name, Address, and Signature Top part must be mailed to the Office of Emergency Medical Services Bottom part is kept with patient

Health Care Surrogate Person who is >18: Reasonably available Willing to make health care decisions on behalf of the patient Possesses capacity to make health care decisions Identified or selected by attending as best qualified to make those decisions

Before Choosing a Surrogate Must make reasonable attempt to determine if incapacitated person has appointed MPOA or has a court- appointed guardian. What constitutes a reasonable attempt?

Reasonable Attempt Current medical record Appropriate persons to ascertain possible existence of MPOA or Guardianship: spouse, adult children, parents, adult siblings, adult grandchildren, patient’s close friend, DHHR or courthouse to see if legal guardian been appointed and is on file Old chart Document attempts

Choosing a Surrogate Appropriate appointing rank: Start at the top & work down: 1. Is there a court appointed guardian? If not…. 2. Is there a spouse? If not, 3. Any adult children appropriate? If not…. 4. Parents? If not…. 5. Adult siblings? If not…. 6. Adult grandchildren? If not… 7. Patient close friends? If not.. 8. Any other person or entity?

These People Cannot Be the Patient’s Surrogate Unless Related to the Patient Patient’s treating health care provider Employee of the treating health care provider Owner, operator, CEO of health care facility serving the pt Any employee of the above

Relying on the Surrogate’s Decision May do so when, after reasonable inquiry, believes: No other MPOA or guardian available, capable, willing to serve No other applicable advance directive No reason to believe that such health care decisions are contrary to the incapacitated person’s religious beliefs; and Physician has not received actual notice of opposition to any health care decision made.

What if Multiple HCS at same priority level? Physician should choose person who reasonably appears to be best qualified….. Physician may select a proposed surrogate who is ranked lower in priority if, in his/her judgment, that person is best qualified to serve. The Physician must document in the person’s medical record his reason for selecting a surrogate in exception of the priority order.

Criteria for Choosing Best Qualified Surrogate Reasonably appears to be better able to make decisions in accordance with the known wishes or person’s best interests Has had regular contact with the person prior to & during the incapacitating illness Demonstrates care & concern Is available to visit the incapacitated person during his/her illness? and Is available to engage face-face contact with the health care providers for the purpose of fully participating in the decision- making process?

Choosing Surrogate If HCS becomes unavailable for any reason, the physician may appoint another HCS If a person who ranks higher in priority than the HCS becomes available and willing to serve, the physician may appoint this person unless the physician feels the lower ranked person is better qualified With each new admission, physician must evaluate is the previous HCS still best qualified? If so, must document that.

If Opposition of Appointed HCS, advise.... Challenger has burden of proof of invalidity of selection File petition for review of selection of HCS Challenging party responsible for all court costs and his own attorney’s fees unless... Court finds facility selected inappropriate HCS, facility becomes responsible for court costs except... Challenging party still responsible for his own attorney fees

If Opposition of Appointed HCS, advise…. Physician documents objection Informs challenger decision shall be implemented in 72 hrs unless receipt of a court order prohibiting implementation of decision 24 hrs if patient is brain dead & HCS authorized organ/tissue donation

Physician Orders for Scope of Treatment POST A standardized “hot pink” form containing orders by a physician who has personally examined a patient regarding that patient’s preferences for end-of-life care. Complements, but does not replace, MPOA and/or Living Will advance directives Effective immediately as soon as order written and all requirements met

Requirements for Valid POST Must have: Patient’s name and date of birth Basis for orders Physician’s signature No conflicting orders Signature of person, parent if minor, guardian/MPOA/HCS

Rationale for doing a POST Advance directive may not be available when needed Advance directive may not be specific enough No provision for treatment in NH/home May not cover topics of most immediate need Advance directive does not immediately translate into physician order Completions of advance directive may NOT have prompted needed discussion

POST: Physician orders for… CPR code status Level of intervention (i.e. comfort care only, intermediate care, or full treatment?) Use or withholding of antibiotics & feeding tubes

Who Should Have a POST form completed? Any individual with a chronic or serious illness who may need a life-sustaining treatment in the future to attempt to survive NO answer to the surprise question (Would I be surprised if this patient died in the next year?) Hospitalized patients being discharged to nursing home or home with hospice or home health Nursing home residents

Who Should NOT have a POST form completed? Patient who wants to be full code or full treatment and is not willing to initial box in Section F Patient who requests contradictory orders

What if Patient already has Advance Directive ? POST reinforces wishes expressed in advance directive Original hot pink POST form remains with the patient POST is a physician’s order that should be immediately used to direct the care of the patient Recommend that very ill patients have both, POST & advance directive

Need POST if has DNR Order/Card? Recommended because: POST addresses more than just DNR. Addresses…. Comfort level IVs / Nutrition Antibiotics

Need DNR order if has POST? Some hospital policies require transferring DNR order from the POST onto facility physician order form Community: POST serves as the DNR order, however… Orange DNR card also recommended for mobile patients - keep in wallet

Where Does Physician Sign? Section E by a physician who has examined the patient Section F after each review of form upon change in care setting or substantial change in patient’s condition

Who Can Fill Out POST Form? Physician Social Worker Nurse Other health care professionals This person signs Section F of form Physician signs regardless who completes

Before completing form… New Form: Converse with patient or, if the patient lacks capacity, representative/surrogate Revising: Physician, MPOA, HCS cannot change a POST done by the patient unless patient initials Section F granting authority for all decisions to MPOA/HCS. That’s why…. Best not to do a POST until patient is seriously or chronically ill… Importance of detailed discussion with patient up front…

Changing the POST POST should be reviewed: Patient is transferred from one care setting or care level to another, or There is substantial change in patient’s health status, or The patient’s treatment preferences change

What if Patient/Surrogate Changes Mind? Void the form; complete a new one Leave in permanent record

How to Void the POST Draw a line though the Physician Orders Write the word VOID in large letters, then Sign and date the form under VOID After voiding the form, a new form may be completed If no new form is completed, full treatment & resuscitation may be provided

Must Health Care Comply with POST? YES Providers can be disciplined by their licensing board for failure to honor advance directives or decisions of surrogate, provided provider had actual knowledge of directive Law protects good faith compliance with honoring advance directives

When Patients are Transferred… Facility initiating transfer must communicate the existence of POST form to receiving facility PRIOR to transfer POST orders remain in effect in receiving facility After admission, attending physician required to review POST & continue w/o change, void and do new one, or void, do not do new one (Section G) If POST done by patient & patient now incapacitated, form can only be changed if box in Section F is initialed

Photocopying the POST Form Photocopy may accompany patient in transfer between facilities Copy is legally valid if copied onto “hot pink” paper Sending copy ensures that original is not lost in transfer

Where is original POST kept? With the patient If patient resides at home: instruct patient to keep it posted on the refrigerator for EMS personnel In hospital: required to keep as first sheet on chart unless otherwise specified by hospital policy

Handling Conflicts Patient’s self-implemented advance directive says one thing ---- MPOA representative or HCS says another…  Patient’s own advance directive rules  Most recently executed one rules to extent needed to resolve inconsistency

Handling Conflicts MPOA or HCS disagrees with what the physician thinks is in the best interest of patient, physician should….  Consult another qualified physician or ethics committee  Transfer care to physician who will carry out the MPOA requests

Legal Protection Good-faith compliance with or reliance upon the directions of the MPOA, HCS, POST, LW Can’t comply? Transfer to another physician who will honor such. Transfer under these circumstances does not constitute abandonment.

Troubling Case Resolved Make reasonable attempt to locate advance directive If one can't be found go through the surrogate selection process Consider a DNR card Consider a POST form

WV Center for End-of-Life Care