VOICES FROM THE INDUSTRY: What Hoosiers should know about advance directives

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While people had sharply divided opions about the Terri Schiavo case, most could agree on one point: It’s a good idea to make sure your wishes about life-prolonging treatments are clearly known.

Indiana residents can sign “advance directives” in order to confirm their wishes
about life-prolonging treatment and to authorize others to make decisions and give consents on their behalf.

Indiana law offers three main types of advance directive: the Living Will, the Health Care Representative Appointment, and the health care power of attorney. The latter two documents name a health care “proxy” who can make decisions for the signer.

Whether you should sign just one, two, or all three advance directives depends on how concerned you are about future disagreements between loved ones or about health care providers’ resistance to instructions stated in your Living Will or later given by your proxy.

Indiana’s Living Will form is stated in the statute, which permits some additions and variations. The Indiana form names no “proxy” and simply states the signer’s wishes that life-prolonging procedures not be used.

In the words of the official Living Will form, health care providers are instructed that “life-prolonging procedures be withheld or withdrawn and that I [the signer] be permitted to die naturally with only the performance or provision of any medical procedure or medication necessary to provide me with comfort care or to alleviate pain.”

Since 1991, Indiana law has classified artificial nutrition and hydration (tube feeding) as medical treatment. The Living Will should state whether the signer prefers: (1) to refuse tube feeding; (2) to request tube feeding if recommended by the doctor, even though all other forms of life-prolonging treatment are refused; or (3) to intentionally leave the tube feeding decision to others (such as family members or an appointed proxy) under Indiana law.

A Living Will’s instructions become effective only if three conditions are satisfied:

First, the signer must be suffering from an incurable injury or illness (or from a coma or persistent vegetative state, if the Living Will makes this addition to the form).

Second, the signer’s attending physician must certify in writing that the terminal condition will result in death in a short time (or that the coma or vegetative state is irreversible) and that the use of life-prolonging procedures will not prevent death but merely prolong the dying process.

Third, the signer must be unable to issue his or her own instructions about
starting, continuing or ending life-prolonging treatment. A Living Will can be orally revoked.

Whether there is a Living Will or not, health care providers generally will seek approval from the patient’s family members before discontinuing or withholding life-prolonging procedures. The Living Will’s most important benefit is to lessen the family’s psychological burden-to make them feel that they are not really making the decision.

Indiana law gives health care providers considerable latitude in refusing to follow instructions in a Living Will, even if all the triggering conditions are satisfied. If one or more close relatives disagree strongly with the patient’s Living Will, some doctors would be reluctant to follow the Living Will, which would not be strictly enforceable if the patient had signed no other advance directive.

In order to deal proactively with potential family disputes or reluctant doctors, individuals can sign either or both of the other types of advance directives, to give one or more proxies (“health care representatives” or “agents”) authority to enforce their Living Wills.

Both the Health Care Representative Appointment, or HCRA, and the limited durable power of attorney for health care, HCPOA, can apply in any situation where the signer is not able to give his or her own instructions and consents-not just in case of terminal illness or irreversible coma. Both the HCRA and HCPOA should be prepared by a lawyer, and both can name multiple representatives with authority to act independently, jointly, or on a “first available” basis.

Both documents can authorize the named agent(s) to discontinue or refuse life-prolonging treatment.

The HCRA must be signed before one witness and is only effective when the signer is incapable of personally consenting to health care.

The HCPOA must be signed before a notary and can be made effective immediately. Indiana law gives health care providers more freedom to refuse to follow instructions given by an agent who is appointed under only an HCRA. An individual who worries that a doctor might refuse to follow the agent’s orders should appoint the agent in both a HCPOA and HCRA.

Whether or not there is a Living Will, if neither a HCPOA or HCRA is signed and if there is an family dispute about what treatment should be used, not used, or discontinued, Indiana law gives the consent power collectively and without any priority to the spouse, parents, adult children, and adult siblings.

To give priority among relatives, to appoint a non-relative as health care agent, or to disqualify some individuals from making health care decisions, a HCRA or HCPOA should be signed.

Dible is a partner in the law firm of Locke Reynolds LLP, where he concentrates his practice in estate planning. Views expressed here are the writer’s.

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