Are You In Control of Your Medical Care?
By Mary E. WanderPolo, CELA

April 16 is the Second Annual National Health Care Decisions Day. This is a day devoted to educating the public and professionals on advance health care planning. The recent decision of Hudson County New Jersey Chancery Judge John F. Malone emphasizes the importance of advance health care planning. In BETANCOURT v. TRINITAS REGIONAL MEDICAL HOSPITAL Judge Malone ruled that the guardian, appointed by the court, had an unrestrained right to continue life prolonging treatment, even over the hospital’s objection and proofs that the treatment was not benefiting the patient.

Clearly, this decision would have been different had the patient done advanced health care planning prior to her incapacity and had an advance directive that outlined under what circumstances she would wish to have life supports stopped.

Just what is “Advance Health Care Planning?”  One of the most important medical-legal issues over the past century has been the decision that a competent patient has the right to choose (and refuse) health care.  The concept of “Informed Consent” has been clearly endorsed by our courts and all states follow this in their state laws and regulations on the provision of medical care.  However, nearly everyone reaches a point in their life when they no longer have the mental capacity to give “informed consent” to medical treatment.  The idea behind “advance health care planning” is that a competent individual can prepare, in advance, instructions for their medical providers to follow when the individual no longer retains the capacity to give (or refuse) informed consent.

The State of New Jersey allows competent individuals to execute two separate documents to provide for their appropriate care in the future.  These documents are the “Health Care Proxy” (also known as a “Health Care Power of Attorney”) and the “Advance Directive” (also known as a “Living Will”). 

The Health Care Proxy is a document which appoints an agent to make medical treatment decisions and give informed consent for treatment when you have ceased to have the capacity to do so yourself.

The Advance Directive is a document that sets forth your wishes regarding life prolonging treatment: when you would and when you would not want your life to be artificially supported by medical equipment. 

Just having a written advance directive by itself does not ensure that your wishes will be understood and respected.  Studies have shown that standard advance directive forms do little to influence end-of-life decisions without (1) informed, thoughtful reflection about your wishes and values, and (2) personal communication between you and your likely decision-makers before a crisis occurs. Good advance planning for health care decisions is, in reality, a continuing conversation – about values, priorities, the meaning of one’s life, and quality of life.

So today, in honor of the Second Annual National Health Care Decisions Day go out and start having these discussions with your family and friends.  Remember, while we cannot predict what illness or injury will end our lives.  If you are interested in some forms to help you walk through the process of advance health care planning, follow this link to the American Bar Association’s “Tool Kit” for advanced medical planning: http://www.abanet.org/aging/toolkit 

Mary WanderPolo has been certified as an Elder Law Attorney by the A.B.A. approved National Elder Law Foundation certification process.  She practices at WanderPolo Law, LLC, in Montclair, New Jersey.  Check out her website at www.wanderpololaw.com.