Advance Care Planning during the Coronavirus Pandemic

Advance Care Planning During the Coronavirus Pandemic

The best time to make health care decisions is before you are ill, when you can carefully consider your options. The best time is now, because you never know when that something may happen. The following post discusses Advance Directives and how they may be beneficial to you and your family.

What are Advance Directives?

Advance Directives are one or more documents that list your health care instructions. An Advance Directive may name a person of your choice to make health care choices for you when you cannot make the choices for yourself. You may also use an Advance Directive to prevent certain people from making health care decisions on your behalf.

Your Advance Directives will not take away your right to decide your current health care. As long as you are able to make and express your own decisions, your Advance Directives will not be used. This is true even under the most serious medical conditions. Your Advance Directive will only be used when you are unable to communicate or when your physician decides that you no longer have the mental capacity to make your own choices.

Are Advance Directives required?

Advance Directives are not required. Your physician or hospital cannot require you to make an Advance Directive if you do not want one. No one may discriminate against you if you do not sign one. Physicians and hospitals often encourage patients to complete Advance Directive documents. The purpose of the Advance Directive is for your health care providers to gain information about your health care choices so that your wishes can be followed. While completing an Advance Directive provides guidance to your physician in the event that you are unable to communicate for yourself, you are not required to have an Advance Directive.

What types of Advance Directives are recognized in Indiana?

1. Organ and Tissue Donation

Organ donation is governed by the Indiana Uniform Anatomical Gift Act. Individuals that want to donate organs may include their choices in their wills, living wills, on a card, or other document. If you do not have a written document for organ donation, someone else will make the choice for you. A common method used to show that you are an organ donor is making the choice on your driver’s license. When you get a new or renewed license, you can ask the license branch to mark your license showing you are an organ donor

2. Health Care Representative

A Health Care Representative is a person you choose to receive health care information and make health care decisions for you when you cannot. To choose a Health Care Representative, you must fill out a document that names the person you choose to act for you. Your Health Care Representative may agree to or refuse medical care and treatments when you are unable to do so. Your representative will make these choices based on your Advance Directives.

3. Living Will Declaration

A Living Will is a written document that outlines your wishes in the event that you become terminally ill and unable to communicate. A Living Will is an Advance Directive that lists the specific care or treatment you want (or do not want) during a terminal illness. A Living Will often includes directions for CPR, artificial nutrition, maintenance on a respirator, and blood transfusions.

4. Psychiatric Advance Directives

This form allows you, in consultation with your psychiatrist, to express mental health treatment preferences, and is available only through your psychiatrist or other mental health counselor.

5. Out of Hospital Do Not Resuscitate Declaration

This form allows you to say that you refuse CPR if your heart or lungs stop working when you are not in the hospital. You should discuss with your physician if you do not want to be resuscitated outside the hospital. This form must be filled out and signed by a physician.

6. Physician Orders for Scope of Treatment (POST)

This form is a set of actionable orders for end of life patients across care settings. In consultation with you or your legal representative, your physician will write orders that reflect your wishes regarding medical interventions, antibiotics, and artificially administered nutrition. You also have the option on the POST form to designate a Health Care Representative. Please be aware that if you have previously designated a Health Care Representative and you name a different person on your POST form, the person designated on the POST form revokes the person named in the previous Health Care Representative Advance Directive.

7. Durable Power of Attorney

A Durable Power of Attorney is another kind of Advance Directive. This document is used to grant another person power over your financial affairs. The legal term for the person you choose is “attorney in fact.” Your attorney in fact is given the power to act for you only in the ways that you list in the document.

What happens if you do not have an Advance Directive?

If you do not have an Advance Directive and are unable to choose medical care or treatment, Indiana law decides who can do this for you. Indiana law establishes a priority list. If you cannot communicate and do not have an Advance Directive, your physician will try to contact a representative using the below priority list. Your health care choices will be made by the representative that your physician is able to contact. The order of priority is:

1. A judicially appointed guardian of the person or a representative appointed by a probate court.
2. A spouse.
3. An adult child.
4. A parent.
5. An adult sibling.
6. A grandparent.
7. An adult grandchild.
8. The nearest other adult relative in the next degree of kinship not listed in 2 through 7.
9. An adult friend (special conditions apply).
10. A religious superior, if the individual is a member of a religious order.

Which Advance Directive or directives should be used?

The choice of Advance Directives depends on your goals. The Advance Directives listed above may be used alone or together. While an attorney is not required, you may want to talk with one before you sign an Advance Directive. An attorney is often helpful in advising you on complex family matters and making sure that your documents are correctly done under Indiana law. An attorney may be helpful if you live in more than one state during the year. An attorney can advise you whether Advance Directives completed in another state are recognized in Indiana.

Can I change my mind after I sign an Advance Directive?

It is important to discuss your Advance Directives with your family and health care providers. Your health care wishes cannot be followed unless someone knows your wishes. You may change or cancel your Advance Directives at any time as long as you are of sound mind. If you change your mind, you need to tell your family, health care representative, power of attorney, and health care providers. You might have to cancel your decision in writing for it to become effective. Always be sure to talk directly with your physician and tell him or her your exact wishes.

What should I do with my Advance Directive upon execution?

Make sure that your health care representative, immediate family members, physician, attorney, and other health care providers know that you have an Advance Directive and where it is located. You should ask your physician and other health care providers to make your Advance Directives are part of your permanent medical chart. If you have a power of attorney or a health care representative, you should give a copy of your Advance Directives to your attorneys in fact.

For additional information on this or any related topic, please contact McNeelyLaw’s attorneys by visiting www.mcneelylaw.com or calling our office at 317-825-5110.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.