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Jewish World Review Dec. 24, 2007 / 15 Teves 5768 Healthcare directives prevent host of problems By Jan L. Warner & Jan Collins http://www.JewishWorldReview.com | Q: My father, age 79, has been in a nursing facility for nearly a year due to several strokes that have debilitated him. Although he is unable to move his arms and legs and can't talk, his mind is still keen and, for those of us who will take the time, he lets us know what he wants. Recently, his condition deteriorated further. Because he doesn't have a living will, the staff has asked my sister and me about Dad's end-of-life treatment for the first time. Dad knows he is dying and has let us know that he does not want to be kept alive by artificial means. However, because we know he can make his own decisions, we suggested that the staff meet with him and us. They say, though, that Dad is not competent and that we must make the decisions for him. Am I missing something here, or is our father not entitled to be involved in his treatment options? A: The U.S. Supreme Court has ruled that your father's "liberty interest in refusing unwanted medical treatment" is protected by the due process clause of the Fourteenth Amendment to the U.S. Constitution. This right to make health care decisions extends to the refusal of food and drink, either provided orally or through tube feeding. This also means that so long as your father has sufficient capacity to understand and express his preferences in whatever manner, he has the right to participate in his health care decisions directly with the health care provider. We find your question somewhat unusual if you are saying that this important issue is being raised by the facility for the first time at this late date, especially in light of the federal Patient Self-Determination Act, which requires all medical providers who accept Medicare and Medicaid to give written information to all patients at the time of admission concerning their rights under state law to make medical care decisions — including the right to accept or refuse treatment and the right to sign advance directives. That said, your father didn't exercise his right to sign a document containing his wishes. He could have used this document to appoint you and/or your sister to make sure that his desires were carried out if he became incapacitated. But even without a health directive, as his health care surrogates under state law, you and your sister may still express his desires and make decisions to the limits allowed by the law of your state. Since your father's mental capacity has been questioned by the facility, you may want to ask the state ombudsman to visit your father at the facility for the purpose of having him "execute" an advance health care directive. If he has the capacity to understand but can't actually sign, his "mark" on the document will suffice. These difficult situations generally arise when an individual has not signed advance health directives — that is, health care powers of attorney and/or living wills. Advance planning in these areas will prevent family/facility confrontations that sometimes accompany end of life. Taking the NextStep: Practically speaking, however, given your father's condition, you and your sister may want to remove this burden from him by expressing his desires to the facility for him. But what should you do if a facility objects to following a patient's decision? In this unlikely event, the facility may be allowed to arrange for the transfer of an individual to another institution; however, in order to do so, the facility must follow strict guidelines to protect the patient. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here. Archives © 2007, Jan Warner

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