Health Care Proxies and Advance Directives help Doctors in critical care of patients

The New Jersey Department of Health issued a comprehensive statement concerning triage and the care of COVID-19 patients in different kinds of licensed health care facilities. This is one among many directives issued in the past six weeks. Read the directive here: FinalAllocationPolicy4.11.20v2

As the patient is being treated, many decisions need to be made along the way, often in rapid-fire fashion. The patient may not be able to communicate or make decisions. It is very important that patients or potential patients have a signed Advance Directive, or Health Care Power of Attorney (proxy) so that if the patient loses his or her capacity to make medical decisions, they have an authorized person who can communicate with the medical professionals as critical decisions need to be made. Certain treatment will be rendered automatically as a response to the patient’s emergency, but in areas where choices and decisions need to be made, it’s vital that there be a designated person. A well-written advance directive will be explicit and reasonably easy to interpret. Whenever possible, naming several back-ups to the primary Health Care Representative (decision-maker) is preferable because if the primary person cannot be reached or has become ill, having a backup to make a crucial decision is vital. If the patient is incapacitated, it would be their representative who has the discussions with the doctor or nurse pertaining to filling out the POLST formPhysician’s Orders Concerning Life Sustaining treatment — which is now a regular part of hospital practice..

We will continue to monitor developments that affect the delivery of crucial health care to our clients If you have concerns or a problem, call for a telephone consultation with one of our attorneys…. 732-382-6070

The Tender Talk about End-of-Life Planning

A regular part of the estate planning process involves a discussion with the client about selecting a line up of trusted individuals to serve as the client’s medical decision-makers. If the doctor determines that the patient has become incapacitated, there needs to be a designated proxy who can act on the patient’s behalf. Ideally, this person was selected by the patient beforehand in writing, because, otherwise, dreadful and lengthy court battles can ensue. I explain to the client that they need to choose the right person for this immensely difficult and emotional job. The person who might be just fine as Executor of the estate might be a poor choice as health care proxy.  The health care proxy will be responsible for the day-to-day health care decisions — should you continue to take this medication? should you have this elective surgery? Should you get a bridge or an implant when your tooth  is extracted? — as well as the major ones when life itself is threatened — should you be placed on a ventilator? should a feeding tube be installed? should the pacemaker battery be replaced?.

Many people have strong feelings about whether they would want certain mechanical means used to sustain their life if they become incapacitated and their quality of life has become terribly diminished due to various severe and chronic disabilities. The means to express these wishes is called a “Living Will” or “Advance Directive for Health Care.”  Essentially, the document speaks for a patient who can no longer express their wishes.

Advance Care Planning is the process of talking with your health care team and your trusted individuals about what you would want if certain things occur. In the hospital setting, the patient is asked to provide instructions which get written on a special form called a POLST that is then signed by the doctor and is placed in the chart as a physician’s order.   If a “living will” was previously signed, the instructions on the POLST form likely will match up with that document. But a patient can of course change their mind. The discussion needs to address the specifics of the condition being treated, the prognosis and potential outcomes, and the patient’s worries. The patient may feel that they never want to be maintained on a ventilator or kidney dialysis, but that they would still want artificial feeding and hydration if they could no longer chew or swallow. Alternatively, the patient may feel that they would want to be maintained on a ventilator no matter what, even if they could no longer interact with those around them due to severe incapacity, and even if this could go on for years.

If the patient is already incapacitated, it could be the designated health care proxy or the legal guardian who is engaging in these delicate discussions with the physician. Sometimes, shorthand is used such as “do you want a DNR put on his chart?” This decision-maker has the authority to complete the POLST on behalf of the patient. Either way, it is important that these serious issues be discussed in advance, since it can be so very difficult to make the necessary choices in the midst of a medical crisis if there was no prior guidance.

Call us for advice regarding estate planning, health care decision-making issues and elder care planning …….. 732-382-6070

Palliative care in a nursing home setting

A person who moves into a nursing home is referred to as a “resident” for a reason — this is their new home. At the end of life, the health care representative (or the patient himself) may be wondering whether there is a way to ensure that he can “die at home” in his bed instead of in a hospital.  Paving the way for a quiet end will require teamwork and collaboration between the health care decision-maker and the nursing home’s decision-makers.  Here are some tips.

The Centers for Medicare and Medicaid Services (CMS) issued a specific, lengthy, updated policy on this issue. ” The facility is required to establish, maintain, and implement written policies and procedures regarding the residents’ right to formulate an advance directive, refuse medical or surgical treatment and right to refuse to participate in experimental research. In addition, the facility is responsible for ensuring that staff follow policies and procedures.” The policy goes on to state: ” RIGHT TO REFUSE MEDICAL OR SURGICAL TREATMENT. If a resident (directly or through an advance directive) declines treatment (e.g., refuses artificial nutrition or IV hydration, despite having lost considerable weight), the resident may not be treated against his/her wishes. If a resident is unable to make a health care decision, a decision by the resident’s legal representative to forego treatment may, subject to State requirements, be equally binding on the facility. A facility may not transfer or discharge a resident for refusing treatment unless the criteria for transfer or discharge are otherwise met.

”  If a resident’s refusal of treatment results in a significant change in condition, the facility should reassess the resident and modify the care plan as appropriate. The facility is expected to assess the resident for decision-making capacity and invoke the health care agent or legal representative if the resident is determined not to have decision-making capacity. Once the decision-making capacity is assessed, the facility is expected to determine and document what the resident is refusing, to assess the reasons for the resident’s refusal, to advise the resident about the consequences of refusal, to offer pertinent alternative treatments, and to continue to provide all other appropriate services. The resident’s refusal of treatment does not absolve a facility from providing other care that allows him/her to attain or maintain his/her highest practicable physical, mental and psychosocial well-being. For example, a facility would still be expected to provide appropriate measures for pressure ulcer prevention, even if a resident has refused food and fluids and is expected to die.”

What can the advocate do? The health care representative needs to find out what the nursing home’s policy is about “Do Not Hospitalize” orders (DNH). Are there certain circumstances in which the facility will require a transfer to the hospital? If the patient stops eating, and weight loss is inevitable, and the patient had previously signed an Advance Directive/Living Will, how will the nursing home accommodate a request to refuse a feeding tube?  What are the facility’s obligations to patient safety? Discuss the process for periodic revision to the  Plan of Care so that the Goals of Care are simply “comfort care” rather than “treatment” of new conditions? Find out the process for utilizing palliative care. Find out how to make sure that every single member of the nursing staff will know that the patient is never to be transported to a hospital in the event of respiratory arrest, cardiac arrest, refusal to eat, etc. Of course, make sure that the physician has entered a DNR (Do Not Resuscitate) order in the patient’s chart. Also, discuss the process by which the facility would normally call in a medical specialist; the patient has the right to refuse such unnecessary evaluations if the goal is “no treatment.”

Each case is unique, and the goal is for the entire team – family, nursing, social services – is to aide the patient to fulfill their wishes and remain as comfortable as possible as the end approaches.

Call for advice and representation in elder care planning and end of life planning … 732-382-6070

What are HIPPA forms and why do you need them?

What is known as “HIPPA” was enacted by Congress as the Health Insurance Protection and Portability Act of 1996.  42 USC 1320d-6.  It is designed to protect the confidentialiy of a patient’s medical information. The extensive federal regulations are found at 42 USC part 160.

A side effect of all of this good confidentiality is that  family members who are actively involved in a patient’s care can find that they just can’t get any information when they call. I ran into that at a major NJ hospital when  my aging mother was admitted for surgery. They needed the doctor to sign a document authorizing me to read the chart, and they had no form for my mother to sign to give me access. When my father was in a rehabilitation facility in NYC and could only get around in a wheelchair, he had to be taken down to the medical records office at the far corner of the basement floor of the building to find the right clerk who, if she was actually there, could give him the form to sign to give me access to information. It was ridiculous.

Attached is the HIPPA form that we give to our clients to use when they sign their estate plans.   HIPAA Form                It can be signed by the patient or by their designated legal representative. You can sign these forms and give them to every doctor, hospital, clinic, or facility you are treated at. Although they will give you a form to sign in which you acknowledge that they won’t share your information with anyone except what’s allowed by law, THIS form actually tells them who they ARE authorized to share your information with. At the top you will see a line to list the names of the people you authorize the health care provider to share information with. Put their phone numbers as well. You need to indicate the purpose (“to help me”) and whether it has any expiration date.

The HIPPA release is NOT a health care proxy. Unlike a health care proxy or power of attorney, it does not give anyone decision-making authority over you.  It doesn’t appoint a decision-maker. It is not an advance directive or “living will” or any kind of instruction directive. It merely cuts through the red tape so that your first responders and involved family members can get the information they need directly from the health care providers. If the patient is already incapacitated, the health cae proxy can sign these releases on the patient’s behalf. If a legal Guardian has been appointed by the court, they can sign these releases if they want to give another close person access to the information.

Whether managing your own health care or someone else’s, making sure that all members of the “team” can talk to each other is crucial. The HIPPA form is one of the arrows in this quiver.


For legal advice on elder care and health care crisis planning, call for appointment … 732-382-6070

What is Hospice care all about, really?

Palliative care is a specialized team approach to helping a patient to cope with the debilitating symptoms of certain serious complicated illnesses such as parkinsons Disease, heart failure, kidney failure, or COPD. The patient is receiving curative treatment and emergency room care during acute episodes of illness, and can receive dietary support, pain management, grief counselling, massage and other forms of care from the palliative care team of health professionals. This can greatly improve the patient’s ability to cope with the symptoms of their illness.

Palliative care services are generally provided at the bedside in a hospital or skilled care facility (nursing home or rehabilitation center) and can still be covered by certain health insurance programs such as Medicare. That would include room and board under Medicare part A . Of course each insurance plan has to be scrutinized to verify the coverage.

Hospice care is sometimes referred to as “palliative care,” but is really something different. It is an alternative to curative treatment,  for a patient who no longer wants medical treatment, and is often provided in the home . When a person with terminal illness feels that they have exhausted the benefits of ongoing aggressive treatment, they may decide that it is time to forego further “treatment” and focus instead on remaining as comfortable as possible for as much time as they have left.. The patient or their health care proxy decision-maker opts out of further curative treatment. The patient then will receive palliative care and pain control. The patient may be at home, in a health care facility or in a hospice facility. Medicare does not pay the room and board charges for hospice care. Although the point of decision may be more apparent for certain patients whose cancer treatment is no longer productive, there can also come a time when further treatment will be declined by a patient with stage four heart failure, or who has advanced alzheimers dementia  and other progressively degenerative clinical conditions such as congestive heart failure or kidney failure.

It is very important that all patients sign a health care proxy (to designate their medical decision-maker should they become incapable of making decisions), and if they have particular wishes regarding the use or non-use of lifesaving treatment,  an advance directive. When in the hospital, they or the health care proxy needs to make their wishes known so that the treatment doesn’t run away with the patient at a time that the patient or their proxy prefers to forego treatment.. In New Jersey, physicians must discuss these issues with the patient and complete a form called POLST setting down the patient’s wishes.

Elder Care requires a team approach. The palliative care team can greatly enhance the family’s experience at the end of life.

 For legal advice on preparation and implementation of health care directives, powers of attorney and elder care planning, call … 732-382-6070