What is the difference between a Do Not Resuscitate (DNR), a Living Will, and a Healthcare Power of Attorney?
April 16th is National Healthcare Decisions Day, a day set aside to encourage all adults to educate, discuss, and engage in advanced care planning. Advance care planning is the process of discussing and documenting your healthcare wishes now in case you become temporarily or permanently incapacitated and unable to speak your decisions to your medical providers. National Healthcare Decisions Day (NHDD) started in 2008, but this year NHDD seems to be more noticeable to many people given the recent global pandemic of Covid-19 (the Coronavirus).
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There are many legal and medical documents that can be involved in a person’s advance care planning, depending on the person’s age, health, and preferences (including religious preferences). You should speak with a qualified elder law attorney and your medical professional when determining what documents are appropriate for you. Three primary documents used in advance care planning are a healthcare power of attorney, a living will, and a do not resuscitate (DNR) order. These documents serve separate purposes, but often work together during an end of life scenario.
A healthcare power of attorney is a legal document in which a person appoints a trusted friend or family member, called an “Agent” to make the person’s medical decisions if the person becomes incapacitated in the future. The healthcare power of attorney allows the Agent to give consent to or prohibit any health care, medical care, treatment, or procedure. However, an Agent may not withhold or withdraw artificially supplied nutrition and hydration unless this wish is specifically provided in the healthcare power of attorney document. All adults over the age of eighteen should have a healthcare power of attorney naming a trusted friend or family member to make their medical decisions should the person become temporarily or permanently incapacitated.
A living will (also called a physician’s directive or advanced healthcare directive) is a legal document which directs a person’s wishes regarding the use or withholding of medical treatments; specifically, a living will typically addresses a person’s wishes relating to the use or non-use of death-prolonging procedures if a person becomes incapacitated and cannot express those wishes due to the incapacity. A death-prolonging procedure is “any medical procedure or intervention which, when applied to a patient, would serve only to prolong artificially the dying process and where, in the judgment of the attending physician pursuant to usual and customary medical standards, death will occur within a short time whether or not such procedure or intervention is utilized.” RSMo. § 459.010(3). Missouri law requires clear and convincing evidence of a person’s wishes regarding death-prolonging measures before medical treatment may be withheld or withdrawn. Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990). A living will is the preferred document for a person to express their preference on death-prolonging medical treatment in certain circumstances. The living will can then be used if the person becomes incapacitated and unable to speak their wishes regarding the withdraw of medical treatment. All adults, but especially older adults, should have a living will and discuss their end of life wishes with their close friends, family members, and Agent(s) named in their healthcare power of attorney.
A do not resuscitate order (DNR) is a medical order signed by an adult patient and their doctor ordering that no cardiopulmonary resuscitation (CPR) be performed on the patient in the event of cardiac or respiratory arrest, even if CPR would save the patient’s life. CPR includes cardiac compression, endotracheal intubation, artificial ventilation, defibrillation, and other related medical procedures. An out of hospital do not resuscitate order (OHDNR) extends the medical order to when the patient is no longer admitted to a health care facility (for example, if the patient is at home) and prohibits all emergency medical services (EMS) personnel from administering CPR. An OHDNR must be on purple paper and must be presented to EMS personnel to be effective. A person’s Agent under a healthcare power of attorney may execute a DNR or OHDNR on behalf of the person; if a person has failed to execute a healthcare power of attorney and does not have a court-appointed guardian, the person’s spouse or other family member may not execute a DNR or OHDNR on behalf of the person. A DNR or OHDNR must also be signed by the patient’s doctor. Any person wishing to execute a DNR or OHDNR should contact their doctor to discuss their options.
Another, newer, document is the Transportable Physician Orders for Patient Preferences (TPOPP), which is called Physician Orders for Life Sustaining Treatment (POLST) in states other than Missouri. A TPOPP is a medical order signed by the patient’s doctor and is designed to be used whether the patient is in a hospital, at their own home, in a skilled nursing facility, etc. A TPOPP is broader than a DNR and includes preferences on CPR, antibiotics, ventilation, feeding tubes, and other medical treatments. The TPOPP is a non-statutory document that is endorsed by many medical providers in the state of Missouri. A TPOPP is intended for patients who have serious medical conditions and may be at high risk for life-threatening medical events, including patients who qualify for Hospice and patients with advanced neurodegenerative disease (i.e. dementia or Alzheimer’s).
Navigating, discussing, and executing these different legal and medical documents can ensure your medical wishes are carried out if you become incapacitated. The attorneys at The Elder Law Group are experienced in providing specific, tailored legal advice to confirm our client’s medical and end-of-life wishes without unnecessary complications. Contact us today at 417-708-2044 or at info@TheElderLawGroup.com to schedule a consultation.
The information in this blog post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog post should be construed as legal advice. No reader of this post should act or refrain from acting on the basis of any information included in this blog post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.