Estate planning and being diagnosed with a terminal health condition are two times most people think about advance health care planning. However, you should not wait until confronted with the end of your life to consider what you would want when that time comes. Instead, you should be thinking about, deciding, and making your wishes known about the kind of care and treatments you wish to receive at any age. Health care directives allow you to dictate your wishes when it comes to your medical care so that even if you are just unconscious due to a car accident or under anesthesia for a surgery, others will know what you want. There are a variety of directives that you can complete and some of them are more common than others. If you are ready to put directives in place to ensure you receive the kind of care you want, Erin Marshall Law may be able to assist you. Call (505) 218-9949 to book an appointment and review your future health care needs.
Who Tends to Complete Advance Health Care Directives?
The National Library of Medicine reports that a study published in March 2017 indicates that older people and individuals with higher incomes tend to be more likely to fill out health care directives. The study also indicates that white people are more likely to complete advance health care directives, with black people having 77% lower odds of completing directives and Hispanics having 70% lower odds of completing these directives. The same study also found that blacks generally pursue more aggressive care while whites preferred more passive care.
The study speculates that there are many possible reasons for these disparities, including that Hispanic culture often relies on close family bonds and therefore, they may rely more on their family speaking for them even without the legal documents in place. Other potential reasons include other cultural factors, including attitudes toward and beliefs about end-of-life care. Black people often have a distrust for the healthcare system that may also contribute to their lack of advance health care directives. The study also suggests that white people may take a more individualistic approach to these types of decisions, while people of ethnic minorities may prefer to connect with and make decisions together with their families.
What Are The Most Common Health Care Directives?
According to the National Institute on Aging (NIA), the two most common health care directives are a durable power of attorney (POA) for health care and a living will. However, there are a number of other documents that may be completed as part of an individual’s advance health care planning. Before deciding which directives to complete, individuals may wish to consult with their doctor, their families, and a lawyer at Erin Marshall Law to ensure that all their wishes will be understood and documented.
Durable Power of Attorney for Health Care
A durable power of attorney for health care names a health care proxy, also called an agent or representative, for the individual giving the POA. The health care proxy is the person who can make decisions on behalf of the individual who grants the POA if that person is unable to speak for themselves. A POA for health care plans for unforeseen events, such as strokes, serious car accidents, or maternity injuries.
A durable power of attorney for health care only allows the individual named as agent to make health care related decisions. If the person giving the POA wants to name someone to handle their finances or other matters besides their health care, they will need to complete other powers of attorney to do so. They can give the same person authority over these other matters, but the POA for health care will not grant that authority.
Living Will
In New Mexico law a living will is part of the advance health care directive. There is a simple form to complete that includes a living will. A living will is also called an “Instruction Directive” in New Mexico. This document tells health care providers how the person wants to be treated if the individual cannot make their own decisions. This form can indicate which common medical treatments or care the individual would want, which ones they want to avoid, and under which circumstances each choice applies. Some of the decisions an individual may make in a living will or instruction directive include whether to receive or withhold artificial hydration or nutrition, whether or not to be placed on a ventilator and intubated if they cannot breathe on their own, and whether or not CPR should be performed if the individual’s heart stops or begins beating in an abnormal, life-threatening manner.
A living will is similar to a New Mexico Medical Orders for Scope of Treatment (MOST) or Physician’s Orders for Life Sustaining Treatment (POLST). The main difference is that a MOST or POLST is based on an individual’s current health status, typically when the individual has been diagnosed with a chronic health condition or serious illness. A living will can be completed when the individual is in excellent health, based on what their wishes are if that health should change.
Advance Health Care Directive
In other states, individuals can complete a durable power of attorney for health care and a living will together or separately. In New Mexico, there is a broader document that includes both documents and is authorized by New Mexico Uniform Health Care Decisions Act. This act provides an optional form individuals can use to complete the POA and living will.
Individuals are not required to use this optional form or any other form. Legally, an individual can express their wishes to their physician or a loved one verbally or simply written on paper. However, it is strongly recommended that individuals use this optional form or consult with an attorney to learn more about what information to include to create a legal POA or living will. While the law allows individuals to verbally tell loved ones or physicians about their wishes, if there is any disagreement between loved ones or between a loved one and a physician, the individual’s wishes may not be honored because it is not clear what those wishes are. By putting them into a legal document, the individual ensures that their wishes are clearly stated, understood and honored as much as legally possible.
Do Not Resuscitate Order
A Do Not Resuscitate order (DNR) is a document that is part of an individual’s medical chart to inform the medical staff in a nursing facility or hospital that the individual does not want them to perform CPR or use other life-support measures if their heartbeat or breathing stops. This document is often used by those who are terminally ill, very near the end of their life, and do not wish to sustain their life artificially or unnecessarily. However, it is also used by other people who may not be terminally ill or near the end of their life, but who do not desire to have measures taken to restart their heart or breathing. A DNR may also be posted next to the individual’s hospital bed or posted in their home to avoid any confusion about their desires in an emergency.
What Happens If I Do Not Set Up Any Advance Health Care Directives?
There is no legal requirement to set up or complete any advance health care directives. Advance health care planning is an optional process for those who know what kind of medical care or treatments they desire under specific circumstances. By putting those wishes into a living will or assigning a POA and telling their POA what they want, the individual reduces uncertainty and emotional distress for their loved ones. They also reduce disagreements among their family members, potentially avoiding unwanted treatments or care for themselves.
Without a living will or a POA in place, there are no clear instructions about what the individual wants. This means that decisions will be made based on consultations with family members and/or standard protocols for the individual’s condition and health status. This could mean that an individual is placed on a ventilator when they would not have wanted that to happen, for example. Their wishes may not be honored because those wishes are unclear or not indicated.
How Do I Decide What Choices to Include in an Advance Directive?
Advance health care planning requires the individual to think about their eventual death. They must consider what they want that death to look like and what kind of measures they want taken to put that death off as long as possible or if they want any measures taken to prolong their life. Whether the individual is currently in excellent health or is facing a chronic, serious or even terminal illness, these considerations can be difficult to face. Making decisions about how and when their life may end can be complex and uncomfortable. There are several things individuals can do to help them make these decisions.
The University of New Mexico’s Values History Form is a free document that guides the individual through a series of questions to help them reflect on their life, including religious beliefs, attitude toward life, and other considerations. By answering these questions, the individual may gain clarity about the kinds of decisions they want to make and the choices they want to include in their health care directives. These questions can also be used to have discussions with family members, explaining the choices the individual has made or assisting those family members with making their own decisions.
Are There Any Circumstances Under Which My Living Will or POA’s Decisions Would Be Ignored?
New Mexico health care providers are generally legally required to abide by the terms of a living will or POA. However, for both documents, there are some exceptions that allow a health care provider to refuse to provide care as stipulated in the living will or by the POA. Outside of these exceptions, violations of health care directives can have serious consequences for the health care provider.
Living Will Exceptions
A health care provider can ignore the choices in this health care directive under the following circumstances:
- The choice goes against the provider’s conscience
- The choice violates the facility’s policy
- The choice would result in the provider rendering ineffective health care or violates the provider’s health care standards
- There is anything illegal in the choice
In some other states, there are laws that allow health care providers to ignore a health care directive if the individual is pregnant. New Mexico does not have such a law, which means that an individual’s living will should be honored whether they are pregnant or not, unless one of the circumstances above is present. In the event that one of those circumstances does occur, the health care provider is required to continue to provide appropriate medical care until such time as they have informed the individual or their agent and can transfer the individual to a doctor or facility that will honor the living will. If an individual’s doctor ignores their living will and does not transfer their care, the doctor can be held liable for damages in a medical malpractice claim.
Power of Attorney Exceptions
A living will is a health care directive that outlines exactly what the individual wants. On the other hand, a power of attorney is an individual appointed as agent who makes decisions on the other person’s behalf. While the agent is expected to make decisions in the patient’s best interests and in alignment with what they believe the patient would want, because there are no written wishes and the providers must rely on this person to speak for their patient, it can be more complicated than abiding by a living will.
Circumstances that allow a health care provider to ignore a POA include:
- If the named agent works for the same health care facility the patient is in and the agent is not related to the patient by blood, marriage, or adoption
- The treatment requested is unavailable or infeasible
- The provider does not have the license or authorization to offer the requested treatment
- The requested treatment is in conflict with New Mexico or federal law in some way
- The treatment is medically ineffective
- The treatment goes against the provider’s conscience
- The treatment goes against the facility’s policy
Like refusing to comply with the living will, the provider must inform the agent or the patient that they are refusing to comply with the requested treatment. They must explain why they are refusing to comply, and in cases where another provider could provide the treatment (such as when the provider is not licensed to offer the treatment or the treatment goes against the provider’s conscience or the facility’s policy), they must provide continuing care until they can transfer the patient to another doctor or facility that will provide the requested treatment.
How an Attorney May Be Able to Assist You With an Advance Health Care Directive in New Mexico
Advance care planning is an important process for any New Mexico resident, regardless of age, marital or family status, or ethnicity. When you appoint someone as durable POA for health care and detail your choices in a living will, your health care providers are required to abide by the decisions your agent or living will indicates except for very limited circumstances. Whether you need assistance completing these health care directives, or you already have them in place and a health care provider has ignored them and your care was compromised as a result, Erin Marshall Law may be able to assist you. Book your appointment by calling (505) 218-9949 to review your case and learn how one of our experienced New Mexico medical negligence attorneys may be able to assist you.
