By Beth A. McDaniel
A Healthcare Directive (AKA “Directive to Withhold Life Sustaining Treatment” or “Living Will”) is a legal document which provides an individual’s end of life wishes should the individual be dying in a hospital or nursing home. To be valid, it must be notarized or signed in the presence of two disinterested witnesses.
This document becomes operative when an individual reaches a terminal condition or a permanent unconscious condition. In the context of this document, a ‘terminal condition’ is established through diagnosis by the attending physician and is legally defined in Washington law as an incurable and irreversible condition caused by injury, disease, or illness, that would within reasonable medical judgment cause death within a reasonable period of time in accordance with accepted medical standards, and where the application of lifesustaining treatment would serve only to prolong the process of dying. A ‘permanent unconscious condition’ is determined by two physicians and is defined as an incurable and irreversible condition in which the individual is medically assessed within reasonable medical judgment as having no reasonable probability of recovery from an irreversible coma or a persistent vegetative state.
A Healthcare Directive, at the very least, articulates an individual’s preferences concerning the withholding of nutrition or hydration. In our practice, the Healthcare Directive form goes further by encompassing preferences regarding CPR, ventilation, intubation, and the use of antibiotics. It is important to note that a Healthcare Directive can diverge in its stipulations concerning terminal conditions versus permanent unconscious conditions. Additionally, the directive may grant the individual’s agent discretion regarding decisions surrounding life sustaining treatment. This is a common stipulation for clients regarding the administration of antibiotics.
A Healthcare Directive should be included with the individual’s health records and should be provided to any attending physician. It is advisable that Healthcare Directives be updated at least every five years.
In short, although a Healthcare Directive is an ‘optional’ document, it provides helpful information to your agent, family, and healthcare providers, including whether you want to continue to receive ‘life sustaining treatment’ when you are facing end of life in a hospital or nursing home setting.
In Washington, the POLST (Physician’s Order Regarding LifeSustaining Treatment) Form was established the result of amendments made to Washington’s Natural Death Act in 1992. The primary objective was to provide clear guidelines to healthcare professionals operating in out-ofhospital environments and emergency medical personnel who respond to injury or illness incidents for the purpose of treating individuals who have formally expressed their wishes through a written directive or durable power of attorney, indicating their preference to avoid ‘futile emergency medical treatment’
It is essential to know that in Washington, emergency medical personnel are prohibited by law to act based on end-of-life directives that may be conveyed through bracelets, necklaces, or tattoos.
If you are seriously ill or in poor health from one or more chronic or serious health conditions, you should discuss the possible execution of the POLST form with your physician and the risks you would face in a medical emergency. In some cases, clients execute POLST forms so that emergency medical treatment is not given. In such cases, oxygen and other comfort measures would instead be administered.
Of course, executing a POLST form is not a guarantee that your end of life wishes would be honored in a medical emergency as, although you would likely post it on your refrigerator or another prominent place in your home, it is highly unlikely that you will have the POLST form with you should an emergency occur in a public place like a Mariner game or grocery store (that said, a client has shown me a small, laminated version of the form which she carries with her).
Although Medicare requires health care institutions ask patients about advance care planning documents, it prohibits them from compelling or requiring patients to have a Healthcare Directive or POLST form. Also know that in situations where both a POLST form and a Healthcare Directive contain conflicting instructions, the document executed most recently takes precedence.
It is essential to understand the distinctions between a Healthcare Directive and a POLST form. As mentioned, a POLST form requires a doctor’s signature and imparts specific directives to emergency medical personnel in non-hospital or nursing home settings, whereas a Healthcare Directive provides end of life directives when the individual is dying in a hospital or nursing home setting.
Sadly, during my legal career there have been a few instances where confusion and frustration arose for clients when emergency medical personnel failed to adhere to the Healthcare Directive after a 911 call was made from the home. It can be traumatizing to watch emergency responders administer lifesaving treatment to dying loved ones, sometimes to no avail, especially when knowing that was not the loved one’s desire.
If you have questions regarding a Healthcare Directive, POLST form, or any other estate planning documents, please contact our client care specialist, Margo Passeau, directly at (425) 296-3121 or by e-mail at margo@bethmcdaniel.com.
First Published: October 2023