Final wishes require clarity

Pamela Yip
Dallas Morning News

It's the most serious of responsibilities to be bestowed upon you: the power to make medical decisions for your loved one in case he or she can't. It's called being a health care proxy, and it means you can make decisions and take actions that your loved one would if he or she were able.

That encompasses talking with your loved one's medical team about treatment choices and deciding on a course of action. It may also entail making end-of-life decisions.

So how do you take on such a huge responsibility? Here are some guidelines:

You can say no: If someone asks you to be their health care proxy, think it through carefully. Understand that you don't have to do it.

"It may be hard enough coping, even without the added responsibilities of making health care decisions," the American Bar Association says in its guide Making Medical Decisions for Someone Else: A How-to Guide. "But it is an important way to help someone you care about."

Understand the lingo: There are three kinds of health care proxies: agent, surrogate and guardian. But in all cases, a proxy is a person who can make health care decisions for someone else.

"What I see with my clients is that there's a lot of confusion because there are several documents involved," said Marvin Blum, an estate planning attorney at the Blum Firm PC in Fort Worth and Dallas.

Here are the key documents you need to know:

■Medical power of attorney — In this document, you designate a person and perhaps one or two alternates who will make medical decisions for you when you're unable to do so for yourself.

■Directive to physicians — A person uses this legal document, also known as a living will or physician's directive, to make known his or her wishes regarding life-prolonging medical treatments.

"The physician's directive does not designate an agent but rather allows a person to express their wishes on end-of-life decisions," said Brian Fant, an elder law attorney in Dallas. "It allows an individual to express his or her preferences in advance in the event they are unable to speak for themselves when faced with either a terminal condition or irreversible condition, both of which are specifically defined in the directive."

It's a critical document.

"It is the only document that gives the patient's family advocate a voice in the decision-making about pulling the plug," said Michael Wald, an estate planning and elder law attorney at Underwood Perkins PC in Dallas. "Without it, the advocate may be listened to, but their input isn't seriously considered by the hospital ethics committee that makes the final end-of-life care decisions."

■HIPAA waiver of authorization — This legal document allows an individual's health information to be disclosed to a third party. The waiver is one of the patient-privacy measures contained in the federal Health Insurance Portability and Accountability Act of 1996.

Talk it over: It's important to understand your loved one's wishes and values.

"Spend time discussing the wishes of the individual at the time you agree to serve as the agent," Fant said. "Discuss religious and moral beliefs to know how they would make decisions on medical care.

"Do not be afraid to address the issues," he said, adding that the best time for a frank discussion is when the documents are signed.

Write everything down and keep it for future use.

Blum said he's drafting documents for a client that directs his proxy to consider his client's Roman Catholic faith and to turn to the church for guidance.

The draft of proposed language in the client's medical power of attorney directs that health care decisions be made "in accordance with the principles and authoritative teachings of the Catholic Church."

Curtis Fish Jr. said he's had "the talk" with his 87-year-old father, Curtis Fish, who has dementia and is living in a senior community.

His brother holds the main medical power of attorney for his father. But Fish is the alternate and makes the primary medical decisions for his dad because they live in the same city.

"You hope you're making the right decision," said Fish, 58. "We had that conversation several years ago when we were drawing up the do-not-resuscitate order and those kinds of things. It's one of those things that we hope we never have to use."

Get access to records: You should have access to your loved one's medical records and any information you need about the patient's health or health care.

Ask for clear explanations so you can understand the patient's medical condition and what treatment options are available.

Palliative care teams at Baylor Health Care System help those charged with making medical decisions reach a comfort level about their actions. It's a service they provide to patients and their families.

"Many of us as we approach the end of life lose the ability to communicate our wishes," said Dr. Robert L. Fine, clinical director of the Office of Clinical Ethics and Palliative Care at Baylor. "Appointing a surrogate is one way to deal with that."

But he said that often surrogates don't know what the patient wants.

"My own anecdotal experience over 30 years of conversations with surrogates is that they frequently tell me that they and their loved one never discussed treatment preferences," Fine said.

When there are several surrogates, they often disagree about what their loved one would want, and that is stressful not only for the family member but also for the medical team, he said.

"Surrogate stress is significantly lower when the patient gives the surrogate written guidance with a living will," Fine said.

Fish said his father wants to be treated with respect as he approaches the end of life.

"I spent a lot of time with him, and he talked about how he wanted things to be handled," Fish said.

He said his father told him, "I don't want to be stuck on a machine where I wouldn't recognize my family."

"He wanted to keep his dignity, both in health and death," Fish said.

And isn't that what you'd want for your loved one?