Over the last thirty or so years, the media have brought attention to the plight of disabled persons who are unable to make their own healthcare decisions or make their end-of-life decisions known to their caregivers, and how their cases should be handled. From Nancy Cruzan, the Missouri woman who was the subject of litigation by her family to remove feeding and hydration tubes that led to a U. S. Supreme Court case in 1989, to Terri Schiavo, the Florida woman whose husband sought to remove her feeding tube which resulted in a seven-year legal battle during the 1990’s, it has been brought to the attention of the general public that the rights of disabled persons and the decisions their caregivers attempt to make for them can result in ugly court battles that may make the situation even worse.
In response, most states enacted legislation allowing competent adult persons to make what are referred to legally as an advance directive. An advance directive is more commonly known as a living will, or a power of attorney for healthcare decisions, or an appointment of health care agent. These are documents that allow someone to express their clear (and legally binding) wishes about end-of-life care, or authorize another person to make decisions on their behalf that will be binding on their treatment providers.
Tennessee has had a statutory form of living will since about 1985, substantially modified in 1991. A living will is a direction to one’s health care provider regarding end of life care such as artificial feeding and hydration, use of breathing machines, and even organ donation. While useful, it requires the health care provider to make decisions based upon their assessment of the patient’s condition, and does not involve the family making decisions.
In 1990 the General Assembly authorized the use of a power of attorney for health care decisions which allows the person making the instrument to name someone they trust, as well as an alternate in case the first choice is unavailable, to make any health care decisions the person could make for themselves. In2004 this authority was further expanded, allowing the Department of Health to come up with simple advance directive forms.
A more detailed health care power of attorney drafted by your lawyer under the 1990 statute can be very broad, covering not only deciding what treatment to give or to withhold, but the right to confer with treatment providers and access medical records, and is typically interpreted to allow the health care agent to make end of life decisions, as well as decisions about disposition of the person’s body at death.
Most health care providers prefer the power of attorney or some form of advance directive, as it allows someone the person trusts to stand in their shoes and make the decisions, rather than tasking the treatment team with deciding whether conditions exist that would require the imposition of directions in the living will. The power of attorney or advance directive is particularly useful where the person making it does not have close next of kin, such as a spouse or children, who would legally be permitted to make decisions in the absence of such an instrument.
Since these documents must be signed while the person is competent, preparing an advance directive or health care power of attorney should be done sooner rather than later. Forms promulgated by the Tennessee Department of Health can be found at http://www.tennessee.gov/assets/entities/health/attachments/PH-4194.pdf and http://www.tennessee.gov/assets/entities/health/attachments/Health_Care_Agent.pdf. If you want to leave more detailed instructions, call us and we can help you prepare a more detailed health care power of attorney.