My attempt at a little humor on a less than humorous topic.  I think when most people hear about a health care directive they are thinking about forms that direct the doctors or emergency medical responders on whether or not they want to be resuscitated or intubated.  Those instructions however are covered in a document that is different than your health care directive.

In estate planning, we are often working with clients to draft and get signed a health care directive (“HCD”), which is an integral part of their estate plan.  The HCD is a tool that gives you the ability to name a trusted individual(s) to make health care decisions on your behalf when you are unable.  If you are ever incapacitated, this document can be used and should avoid the need to set up a guardianship.  A guardianship is a court process where someone is named to step in make decisions for you regarding your healthcare but also your overall personal well-being if the court determines you are no longer able to yourself.  By setting up a HCD, you get to choose who you want to be in charge of your healthcare and how you want your healthcare wishes carried out.

A directive regarding a “do not resuscitate” (“DNR”) and/or a “do not intubate” (“DNI”) order is a doctor’s instruction that directs that no attempt will be made to interrupt the process of dying.  Only a physician has the authority to place a patient on a DNR/DNI status.  A DNR/DNI order must be signed and dated by a physician and the patient.

Since these instructions are physician’s orders, any language you may include in your HCD on this specific directive is merely an expression of your wishes regarding life-sustaining treatment.  That in and of itself is not necessarily a bad thing.  It can be so helpful to family and those trying to make medical decisions on your behalf to know your wishes in a variety of different medical situation.  Just know however, that if you want to create an enforceable and clear order on this directive, you should discuss the DNR/DNI with your physician and it should signed by both you and your physician and put in your medical record.

If there is no DNR/DNI in place and you are judged to be incompetent, the decision will be reached by the appropriate agent you name in your HCD and your physician.  If your health care agent disagrees with the physician, a DNR/DNI cannot be written.  So you can imagine a scenario where you may have had a very different wish, but your well meaning health care agent (likely your family member) refuses to accept the situation and the physician cannot move ahead with a DNR/DNI.

The DNR/DNI should not be confused with another type of physician’s order called a POLST.  This is a provider order for life-sustaining treatment (“POLST”).  A POLST is not a substitute for a HCD, but instead it provides specific provider orders with regard to CPR, intubation, the use of emergency medical services, medical nutrition, and antibiotics for patients with a terminal illness.

In the end the best practice is to complete a HCD as part of your estate planning process.  Get a copy of that HCD on file with your physician.  The HCD is not a substitute for a DNR/DNI.  Then sit down with your physician and determine if a DNR/DNI is appropriate, both of you should sign it and also get it on file with the physician and have a copy at home for the emergency medical responders.

Please send me an email at rene@breenandperson.com with any topic suggestions or requests you may have.  Although we cannot give you legal advice through the column, we can provide some general information that may be helpful for you to know.  Our purpose is to educate and we hope that you can take something new away from this column each time you read it.