Taking Control of Your Care

Joshua Stegeman
Second Wind St. Louis
Board Member
March, 2006

A lung transplant is one of the most complex and serious surgeries that an individual may undergo in their lifetime. Usually the period leading to the decision to seek a lung transplant is fraught with anguish and exasperation from the health condition that precipitates the necessity of a lung transplant. Unfortunately, this can be a very turbulent period in an individual’s life. Sometimes important steps in addressing the underlying health condition, preparation for a lung transplant, and even post-lung transplant treatment are overlooked. One such consideration is the creation of a Durable Power of Attorney for Health Care, a Living Will, and potentially a Will or Trust for distribution of one’s estate at passing. These are important documents because they provide direction and guidance to others when an individual may not be able to care for oneself, or even communicate for oneself.

The most important of these documents is the Durable Power of Attorney for Health Care. This document allows the patient to appoint a person to make decisions on the patient’s behalf if the patient should become incapacitated and unable to communicate information regarding medical care. The person appointed with the Power of Attorney has sole discretion in deciding medical decisions for the patient. This means the Power of Attorney allows them to make choices about what kind of treatment will be received and whether life-sustaining measures will be taken. The document encourages the patient to provide guidance and recommendations to the Power of Attorney for certain situations or common medical treatments that might arise if the patient were incapacitated. The patient’s wishes with regard to these decisions would be recorded on the document and the Power of Attorney would be required to adhere to these decisions, UNLESS, the patient has given the Power of Attorney the ultimate discretion to discern the best decision to make. In this case, the recommendations provided by the patient would merely serve as persuasive guidance for making the best decision in the interest of the patient.
For this reason, it is imperative that the patient choose someone who is most trusted to serve as the Power of Attorney. The patient should have oral discussions with the Power of Attorney about their wishes, prior to incapacitation. This insures that the Power of Attorney will truly be familiar with the mindset of the patient when the time comes to make a decision on behalf of the patient. The patient should make certain that the Power of Attorney will honor their wishes, especially if the patient gives the Power of Attorney discretionary power. If the patient chooses a Power of Attorney who disagrees with the wishes of the patient, then it might be better to select a different Power of Attorney to insure the patient’s wishes are followed. Sometimes, this may mean not selecting individuals whom the patient may believe are natural choices to serve as Power of Attorney, i.e. husband, wife, mother, father, brother, or sister. The selection may involve choosing a close friend or extended relative who may not be as conflicted by the emotional torment of having to make “life and death” decisions, since their relationship is different than that of a close family member. Regardless, once a person is chosen to serve in the Power of Attorney role, it is important to select a substitute in case that person should be unable to perform the duties. In addition, it is important to inform both the initial Power of Attorney and the substitute of the document and make certain that they are familiar with its contents. This will better prepare them to make a decision if it should become necessary. Copies of the Power of Attorney should be distributed to all your doctors, the hospital where one is most likely to be taken, any religious organization, your closest family members, and most importantly the Power of Attorney and substitute.

The Durable Power of Attorney for Health Care usually overlaps with the contents of a living will. As discussed above, it is advised for the patient to provide recommendations in the Power of Attorney to guide the individual making the decisions. A living will is nothing more than a written statement or document that outlines what action the patient desires taken if the patient should become incapacitated. It is not effective for actually appointing an individual to serve in the role of a Durable Power of Attorney; however, the two documents may be merged into one document that effectuates both purposes. It is possible to assign the Durable Power of Attorney, and then later attach an additional statement that serves as the living will portion. This is especially helpful if a patient’s wishes should change over a period of time because it allows the patient the ability to make changes with regard to the living will provisions. The contents of the living will may be as specific or as general as the patient chooses. This means that a patient could specify exactly how a particular situation should be handled (i.e. I’ve had a stroke and my kidneys have failed. I am in a coma. I want dialysis, but if I should not wake up in 30 days, I no longer want any life-saving treatments). A more general statement might include that I want all life-saving measures, including an experimental or controversial treatments performed no matter the situation or the cost. A living will allows a patient to address those situations with which the patient wants the most input or foresees the most difficulty in making decisions. Unfortunately, a living will never can address all situations, but it serves as a road map for the Power of Attorney making decisions on the patient’s behalf. Most importantly, the living will language can be admitted into court as evidence of the patient’s wishes, if court intervention becomes an issue.

The last document, a will is probably the most familiar to individuals. The topic of wills involves a great number of other issues. This article is not designed to address those aspects, but to focus on the Durable Power of Attorney for Health Care and the Living Will. Nevertheless, a brief overview of the purpose and affect of a will should provide some scope for those considering a will. While a will can be important in distributing a patient’s estate and assets after death, it is not required in all situations. However, it is usually preferable for a patient to have a will. A will allows a patient to control where her assets will go after death. If a patient does not execute a will before death, the state in which the patient is domiciled (meaning where they intend to reside, for those who only travel to a transplant location to undergo the surgery) has statutes in place to facilitate the distribution of the estate. The biggest issue with relying on the state to administer the estate is that it requires the assistance of probate courts. This procedure can be difficult to navigate and oftentimes requires legal assistance. In addition, it can unnecessarily lengthen the period of distribution because the probate court is not dealing with only the patient’s individual case. However, even if one executes a will, it does not remove the possibility of the probate court from becoming involved.

The most important aspect to take away from this article is to make certain that a patient has a Durable Power of Attorney and if possible a Living Will. The reality is that these documents are not only for people experiencing health care problems, but should be a priority in every person’s life because one never knows when an emergency or accident will require use of the documents.

I have included a link to the Missouri Bar website that contains a Durable Power of Attorney for Health Care form. It is as follows:
http://www.mobar.org/535a6273-a632-4566-ae96-1443851e3568.aspx, if the link should be unsuccessful, please go to the Missouri Bar home page (www.mobar.org), then select Public, then on the left side select Durable.