April 2014 • Volume 102 • Number 4 • Page 162
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A more user-friendly statutory POA for health care
Proposed legislation would revise the HCPOA form to make it easier to understand and help principals better communicate their wishes about end-of-life treatment.
End-of-life decisions are rarely easy, and not just for the patient. Family members wrestle with painful choices, doctors weigh the odds of the patient's recovery, and sometimes hospital ethics panels are even convened to help determine what path to take.
Making your wishes known in advance can help. Do you want to be kept alive with feeding tubes and ventilators when there's no chance of recovery? Do you want doctors to continue treatment even if there's little chance you'll survive? Doctors and health care attorneys have long encouraged people to think about these questions and let their wishes be known, either by telling those closest to them or, better yet, executing a written advance directive.
Illinois, like many states, has a Health Care Power of Attorney Act. It includes an advance directive form individuals can complete, sign, and leave with whomever they designate as their agent on health care matters. But the statutory form is filled with legalese and parts of it are written at college reading level, making it inaccessible to people who cannot employ a lawyer to parse it for them.
To address this, the Illinois State Bar Association, the Illinois Medical Society, the Illinois Hospital Association, and other organizations began looking at the form two years ago in an effort to come up with a fix to encourage more people to fill it out.
This effort culminated in Senate Bill 3228, sponsored by State Sen. William R. Haine (D-Alton), which is wending its way through the Senate and could come to a vote this year. The most significant aspect of the bill amends the existing law's language on the "Short Form Power of Attorney" form, making it shorter and easier to understand and including a preamble to guide patients about the issues they should consider. The bill would amend 755 ILCS 45, notably section 45/4-10.
Notably, the amendment to 45/4-10 includes an FAQ-style preamble that prompts individuals to begin thinking about end of life issues. It includes some of the following questions:
- What is most important to you in your life?
- How important is it to you to avoid pain and suffering?
- If you had to choose, is it more important to you to live as long as possible, or to avoid prolonged suffering or disability?
- Would you rather be at home or in a hospital for the last days or weeks of your life?
The amendment also explains in clear language the role the health care power of attorney ("agent") will have in making end of life decisions for the patient ("principal").
"It puts the information and instructions in a frequently asked questions form. And that's consistent with a [popular estate planning] document called the Five Wishes document," said Keith Emmons, a healthcare attorney at Meyer Capel in Springfield, and a member of both the ISBA's Healthcare Section Council and Standing Committee on Legislation. "It advises you in very nuanced ways what things you can think about."
The amended law also advises individuals that they may write their own advance directive, that a health care power of attorney must be at least 18 years old and my not be a doctor. If patients have nothing on record, doctors and hospital personnel are required by statute to rely on closest relatives for guidance, turning first to a spouse and then to adult children, much like intestate succession issues are resolved when a person dies without a will.
"It's a very emotional issue when family members are asked to make a decision for a close family member. That's extremely difficult for them," said Eldon Trame, MD, president of the Illinois Medical Society and a physician in Belleville. "So if we're able to [use] language that is easier for a non-technical, non-medical, non-legal person to understand so that things are according to their wishes, that's definitely a step forward."
Trame said he has had long-time patients tell him they do not want to be kept alive under certain circumstances, but when he advises family members of these conversations they're surprised.
"They say, 'What are you talking about?' It's emotional. We obviously can't make a decision for someone that we're not the family members of. Often we get the question, 'hey Doc, what would you do if this was your dad,' and I can say my dad has told me these things. We're trying to get them in the right frame of mind; stop thinking of themselves as a son or daughter, but to identify with the parent. Those kinds of discussions are what we'd like to initiate in the filling out of these forms."