Markkula Center of Applied Ethics

The Law of Advance Directives

Legal Documents Can Ease End-of-Life Decisions

By Karen Markus

In 1990, the tortured life of Nancy Cruzan came to an end. In a persistent vegetative state from an automobile accident seven years earlier, Cruzan was allowed to die when the U.S. Supreme Court ruled that her parents could instruct doctors to remove the feeding tube that had been keeping her alive. The case established a constitutional right to end life sustaining treatment when it was clear the patient would have wanted such an action.

The Patient Self-Determination Act
Eager to jump on the right-to-die bandwagon but reluctant to take a position on the underlying issues, Congress passed the Patient Self Determination Act (PSDA), which became effective in 1991. The act requires all health-care institutions that receive Medicare or Medicaid funds to provide patients with written information about their right under state law to execute advance directives, but it does not require states to adopt or change any substantive laws. The written information must clearly state the institution's policies on withholding or withdrawing life-sustaining treatment.

One fortunate consequence of this requirement is that health-care institutions have had to examine or develop policies dealing with termination of life-sustaining treatment. The PSDA also requires facilities to document in each patient's medical record whether an advance directive has been executed, to educate staff and the public about the right to forgo treatment, and to ensure institutional compliance with state law. Violation of the act can lead to loss of federal funding.

Durable Power of Attorney for Health Care
One type of advance directive that patients in many states can execute designates an agent to make health-care decisions for them if they become mentally incapacitated. The process involves drafting a durable power of attorney, which is simply a document appointing an agent to act for an individual in the event of incompetence.

Traditionally, the durable power of attorney has been used for property management when an individual is unable to take care of his or her own affairs. In 1983, California became the first state to create a durable power of attorney specifically for health-care decisions. Subsequently, a majority of states have followed in California's footsteps.

The Durable Power of Attorney for Health Care (DPAHC) is drafted to take immediate effect, but the agent is not empowered to make decisions on behalf of the patient unless the patient is deemed, usually by his or her physicians, to be incapable of informed consent or refusal. When that occurs, the agent has access to confidential medical records and can make decisions about forgoing treatment, anatomical gifts, autopsy, and disposition of the patient's remains. Physicians are legally bound to respect an agent's wishes.

The agent's authority comes with some obligations, however: The agent must act consistently with the terms of the DPAHC, as well as with the patient's known wishes, whether or not they have been committed to writing. If the patient's wishes are not known, the agent must act in the patient's best interests.

A person drafting a DPAHC can add other obligations or limitations although, as a practical matter, this may hamper the agent's effectiveness in situations that are inherently unpredictable. A mentally competent patient can revoke a DPAHC either orally or in writing.

Natural Death Act Declaration
The Natural Death Act, enacted by the state of California in 1977, was also the first law of its kind in the nation. Initially a very restrictive political compromise, it was substantially amended in 1992 and is now a useful method of advance planning, particularly for patients who do not wish to appoint an agent.

The Natural Death Act Declaration (NDAD) directs physicians that the patient does not want life-sustaining treatment if he or she is certified in writing by two physicians to be permanently unconscious or in a terminal condition and unable to give informed consent. Under the statute, life-sustaining treatment does include nutrition and hydration, such as intravenous fluids and tube feedings, but does not include pain medication and comfort measures.

Patients can have both a DPAHC and an NDAD. By law, the DPAHC takes precedence over the NDAD, but because agents must act consistently with a patient's known wishes, the NDAD can provide valuable guidance to an agent if termination of life-sustaining treatment is at issue.

The paperwork involved in filling out a DPAHC or NDAD is simple, and no attorney is necessary. Many health-care institutions and medical organizations have advance directive forms available at little or no cost. Copies of the California Medical Association's forms can obtained from the associationÕs Publications Department at 1-800-882-1-CMA.

Karen Markus is a lawyer and registered nurse who teaches health-care law at Santa Clara University School of Law. She writes a legal column for Nurseweek, a bimonthly journal of news and policy for California registered nurses. She is a Markkula Center for Applied Ethics associate.