[00:45] John K. Ross IV: Welcome back to Aging Insight. I’m John Ross, your host and I’m here with Lisa Shoalmire. And we are elder law attorneys. We’re attorneys who try to address the needs of seniors, people with disabilities. Trying, basically to address the type of concerns that we see people have. Concerns like staying out of a nursing home, if they can avoid it. Concerns like becoming a burden on their friends or family. And concerns like avoiding going broke as you get older and trying to pay for yourself. We know that if we can give you the right information, the kind of information that will help you navigate through the years between retirement and the end of life, with the right information, you can accomplish those goals, but you’ve got to have the information. And so that’s why we’re here, that’s why we do this program. We feel very strongly about this message.
[01:44] Lisa B. Shoalmire: Yeah, you know John, I always tell folks when I’m out in the community speaking that, life gets more complicated as you get older. You would think it would get simpler. You’ve raised your kids, you worked your job, you’ve retired. But yet, our seniors are simply bombarded with complexity. Whether that’s open enrollment for Medicare or a estate planning decisions and protecting and caring for the next generation. But it just gets more complicated.
[02:20] John K. Ross IV: Well, and not only does it get more complicated, but in the process of getting complicated you’re also faced with health problems. Health problems that become housing problems and housing problems that become financial problems. All combined with navigating this very complex little path. And in a previous episode, we talked about the importance of the general durable power of attorney for making business-type decisions, if you get to a point where you can’t make them for yourself.
[02:54] Lisa B. Shoalmire: Right, we talked about that being a document in which you yourself are selecting the agent and the person you want to handle your business, if there ever comes a time that you can’t.
[03:06] John K. Ross IV: Right, but one of the points with that was that the general durable power of attorney if, and notice I say ‘if’, that power of attorney is drafted correctly, the person that you’ve appointed will be able to handle just about anything for you except medical decisions. And so today’s topic and today’s issue is gonna be medical directives. And that actually, that term medical directives, encompasses several different things. Things like a medical power of attorney, HIPAA releases, advanced directives, like a directive to physicians, which is also known as a living will, and also a DNR or a Do Not Resuscitate order, all come under the category of medical directives.
[03:56] Lisa B. Shoalmire: Right, so a lot of times people think that their spouse can just… If they get into a position where they can’t make medical decisions, or if they need information out of their medical file that their spouse can just go get it or make those decisions. And that’s not exactly the case.
[04:17] John K. Ross IV: Right. And what you wanna do? There could become a time. For example, if you were in an automobile accident, if you were to have a stroke; you might be at the hospital, you might be in a situation where you need some sort of surgery. Perhaps the surgery is dangerous? But it could be life saving. So if you get the surgery, you could live and if you don’t get it, it’s possible that you die. But you’re unconscious. You are unable to consent to that surgery. You want somebody else to be able to make that decision for you, and you wanna know who that person is well ahead of time.
[04:58] Lisa B. Shoalmire: That’s right. So I guess John, let’s break down the different medical directives that we’re talking about today. And let’s take them one at a time. And I guess since we talked about a general durable power of attorney for business purposes in our last episode, let’s start with the medical power of attorney.
[05:18] John K. Ross IV: Right, well the medical power of attorney again, same concept. But what we’re talking about here is a document that says who you want to make decisions for you if you cannot make them for yourself. Now, if you were paying real close attention to my words, you heard something in there. This is for you if you cannot make the decision for yourself.
[05:42] Lisa B. Shoalmire: And that’s right. Because when we were talking about a medical power of attorney, the patient always always has the ability to make their own decisions. And a medical power of attorney only comes into play at the time where the patient, him or herself is either unconscious and so clearly, you’re in no position to make a decision. Or your really are unable to process the information and to have the judgement to make that medical decision, such as a person who has advanced dementia or Alzheimer’s.
[06:20] John K. Ross IV: Right. A lot of times when I’m talking to people out there, they’ll say, “John, I’m not gonna sign that Medical Power of Attorney. Because if I sign that, my kids are gonna put me in the nursing home.”
[06:32] Lisa B. Shoalmire: Right. That’s… We do get that quite a bit.
[06:34] John K. Ross IV: And, so I wanna be very clear. You’re not giving up any of your own personal rights by signing a medical Power of Attorney. All you’re doing is saying that if you can’t make that decision, here’s who you want to make it for you. And often times I use an example, and it’s an extreme example. But, one of the things that I’ll say is, “Well, imagine that I had a Power of Attorney.” And let’s say that I’ve appointed you, Lisa, as my agent under my medical Power of Attorney. And all of a sudden, I’ve gotten a bad diagnosis.
[07:10] John K. Ross IV: I’ve got something that could kill me. It’s a bad disease, it could kill me. But, there’s a magic pill. And if I take the magic pill I will live and if I don’t take the magic pill, I will die. And I don’t wanna take it. Well, you’re my medical Power of Attorney, can’t you force me to take it?
[07:29] Lisa B. Shoalmire: Yeah. If I… Well, you’re assuming that…
[laughter]
[07:33] John K. Ross IV: Right, of course, I’m assuming that you would want to. But the point is, no.
[07:39] Lisa B. Shoalmire: As your agent under Medical Power of Attorney, I cannot substitute my decision for your decision.
[07:48] John K. Ross IV: Right. It’s my decision, I get to make that. I get to determine when and how I want my own medical care. But, let’s change those facts and let’s say that I’m unconscious. And so, I cannot communicate to that doctor whether or not I would want that magic pill. I wanna know who’s gonna decide for me, and I need to do that in writing and I do that in a medical Power of Attorney.
[08:19] Lisa B. Shoalmire: Right. I tell clients all the time, like with your example with the magic pill. I tell clients all the time, “Hey, if you can blink once for yes and twice for no, that is communication. And assuming that you can listen and understand what’s going on, then we can ask you what decision you want.” But yes, otherwise if you’re unconscious, we need to have someone in place that you trust, that knows what your requirements would be, what your choices might would be, and you want that person making that decision. Once again, this is a document you need to sign and think about and execute ahead of the time that you need it. Because clearly, this is a document that at the point that you need it there’s no…
[09:11] Lisa B. Shoalmire: Right. There’s nobody, you are not going to be able to communicate that. So, that’s Medical Power of Attorney. We’re gonna take a quick break and then we’ll talk about the other medical directives.
[background conversation]
[10:43] Lisa B. Shoalmire: Welcome back everybody to today’s edition of aging insight. I’m Lisa Shoalmire and I’m here today with my partner, John Ross. And we are local attorneys and we practice in the area of elder law. And what that means is, we focus on folks who have their individualized needs and we pull from a lot of different areas of the law to try to find solutions, particularly for seniors and the disabled. Today’s program is about medical directives. And our first segment today, we’ve talked about health care Power’s of Attorney, Medical Power’s of Attorney. Let’s talk about that directive to physicians, or also known as a living will. And this document is also something, it’s very personal. And John why don’t you tell our audience what this document is about?
[11:41] John K. Ross IV: The living will it gets it’s name from actually from a law student who was writing a paper back in the 60’s. And he said that there outta be a will which covers how you want your stuff to go when you die. But there outta be a will for while you’re alive that doesn’t say what you want to happen after your death, but says how you want to die. And that’s where the name ‘living will’ comes from. Well since then, it’s gotten lots of different names, ‘directive to physicians’, ‘advanced directive’, ‘living will’. So, there’s lots of different names for it. But this is the document that says, once the doctors have determined that you’re going to die, but they could keep you alive with things like breathing machines, feeding tubes, all sorts of medical type stuff that could prolong your life, but you have no hope of getting any better.
[12:42] Lisa B. Shoalmire: Right, and then what selections would you want and how would you want your healthcare to be handled in that situation where it is, for sure, 100% that you’re in a terminal situation, terminal condition, whatever medical situation you’re dealing with is going to cause your death? A lot of times we think about that in terms of cancer diagnosis or advanced other diseases. And this is you being able to set the tone for what kind of care you want.
[13:17] John K. Ross IV: That’s right. And so essentially what we’re talking about here is that, if you want to live with breathing machines and feeding tubes, that’s fine, but it needs to be in writing so that you can communicate that decision to the people around you. If you don’t want to live like that, that’s fine, but it still needs to be in writing. Either way, you’re putting into writing this is the last decision you’ll ever make, and you want to make it. Because there’s a big difference between you making that decision and pushing that decision onto somebody you love.
[13:56] Lisa B. Shoalmire: Right, and really that’s what this document is for. It is so that you are taking that burden off of that loved one either way. So often this also gives you an opportunity as you consider making a living will having that conversation with your loved ones about what you do and do not want. But, again, we want to get it in writing.
[14:22] John K. Ross IV: Right, and it doesn’t even have to be just about medical stuff. I had a client one time and she said that she didn’t want any sort of life support or anything like that, she wanted to die naturally. Give her some pain medicine to keep her comfortable. But as she died, she wanted somebody to hold her hand and she wanted somebody to read to her “The Velveteen Rabbit,” which is a children’s book and it was her favorite children’s book from when she was younger. And that was how she wanted to die. And she did die, but we all do. But knowing how she wanted to die gave her family some comfort to let them deal with that transition, and they were not forced to have to make that decision themselves. So, it’s very important, this living will.
[15:16] Lisa B. Shoalmire: Well, and the other thing is when you’re considering a living will, you also want to talk to your physicians. Because, John, we have read research and looked at this, and when they ask physicians as a group what kind of end-of-life care they want, their answers are often very different than the general population. For instance, CPR, that is something that the general population says that they definitely want CPR even if they’re in that terminal condition. Physicians, shockingly, have a very different answer.
[15:56] John K. Ross IV: Right, and so there’s a big difference between what the doctors say, what individuals say. And a lot of times it’s because we as lay folks out here, we don’t really understand the type of medical care. All I know about CPR is what I get from watching TV shows. And they’ve done studies, and on those TV shows 75% of the time when somebody does CPR they make a full recovery. In reality, it’s like 3%, and the doctors know that. And so that’s why the doctors say they don’t want CPR. And so this is not necessarily a legal decision. It’s a medical decision, it’s a personal decision that once you make that decision the legal part becomes putting it in writing and doing it the correct way.
[16:50] Lisa B. Shoalmire: That’s right. We live in an amazing time with a lot of medical advances. And so this is something to discuss with your physician but get it in writing.
[17:01] John K. Ross IV: Right, and don’t confuse this particular document, the living will, with the DNR.
[17:07] Lisa B. Shoalmire: Which the DNR stands for ‘do not resuscitate.’ And I believe we’ll go ahead and take our break, John. And we’ll come back and we’ll talk about the difference between a living will and a DNR.
[background conversation]
[18:43] John K. Ross IV: Welcome back to Aging Insight everybody. I’m John Ross, I’m here with Lisa Shoalmire and today we’re talking about medical directives. We open the program talking about the medical power of attorney and then we talked about the living will. One thing about the living will, a lot of times when I mention the living will people will say, “I’m not interested in signing one of those living wills. Because if I sign that and I start choking on my dinner, they won’t even give me the Heimlich maneuver. Because they’re gonna let me die. They’re not gonna try to save my life at all.” Is that what a living will does Lisa?
[19:24] Lisa B. Shoalmire: Yeah no not at all. And I’ve heard that before as well worried about that they won’t get every medical intervention. But the bottom line is, a living will is just for that situation when we’re at that terminal point. It’s not for just your hospital stay where you’ve had a health event and you are needing that more intense medical care but you’re expected to make a good recovery. That’s not what we’re talking about. Where that living will only comes into play at that extreme end-of-life situation.
[20:00] John K. Ross IV: Right. But what these people are confusing is the difference between the living well and a ‘do not resuscitate’ order, also know as a DNR. And that’s the one that says, “I don’t want any sort of life-saving procedures whatsoever.”
[20:18] Lisa B. Shoalmire: Right. And of course the one difference between a living will, which is a document that you as an individual sign and you indicate what kind of care you want at that terminal stage in your life. And a DNR is, you know what, a DNR is something that your physician has to sign off on.
[20:37] John K. Ross IV: Right. It’s a document between you and your primary care doctor or your treating physician and it’s signed by both of you. Whereas the living will is just something that’s signed by you and either witnessed by two witnesses, or perhaps notarized depending upon which side of the state line you live on.
[20:56] Lisa B. Shoalmire: Well, and the other difference between a living will and a DNR; in a living will situation, maybe it looks like your disease process is terminal and death may be imminent, and you’re just describing what type of care you want, comfort care, pain medication, that type thing. But with a DNR, we’re talking about a situation where you have in fact, you know sometimes they use the term coded or you have come to a point where you need resuscitation. No we’re not just talking about care, we’re talking about the need for resuscitation. And so a DNR covers the situation to where you’re saying that you don’t want resuscitation.
[21:46] John K. Ross IV: That’s right. And so they are two different things. Pretty much everybody needs some form of living will. You need to decide how you want to be treated at the end of life. But only a select group actually need a DNR. That’s a very specific thing for a very specific type of situation. The living will is much broader for everybody else out there.
[22:06] Lisa B. Shoalmire: Well that’s right. Another reason that you might would need a living will is that… The reason that everyone needs one is because unfortunately we might be in an, you might be in an accident or something that, that suddenly puts you into that terminal or vegetative condition. And once again, take that burden off your family and have that decision already made for them.
[22:32] John K. Ross IV: Right. Now there’s one other piece to all of this and that is there is a federal law out there called HIPAA. And it stands for Health Insurance Portability and Accountability Act, H-I-P-A-A. But what that law is, is the one that says, “Nobody”, and I when I say nobody, I mean nobody, not your spouse, not your kids, “Nobody has access to your medical information without your signed written permission”. And so it doesn’t do anybody any good to be able to make a medical decision for you, to be able to talk to the doctors for you or any of that, if they can’t access the medical records. So the last key to all of this is what’s called a HIPAA release. Something that says, okay I’ve appointed this person as my medical power of attorney but they also have access to my medical records under this federal law called HIPAA.
[23:35] Lisa B. Shoalmire: Well and people are very familiar with HIPAA, in the sense that it seems like every time you go to the doctor’s office they hand you a clipboard, and it’s got making sure you’ve been advised of our HIPAA privacy policy. And the doctors’ offices are doing that because they have to be in compliance with this federal law. So making sure you have a HIPAA release signed that can go to any doctors’ offices or any medical facility is a way to make sure the people that care about you can get information about you, whether it’s here locally or whether you’re at MD Anderson or some other facility. The other part of this is, a HIPAA release is necessary. If you wanna have your son or daughter pick up your prescription at the pharmacy, then the fact that you’re taking a specific type of medication is, in fact, medical information. So your pharmacy is gonna want to have a HIPAA release so that your family member or friend could pick up your prescriptions.
[24:39] John K. Ross IV: So we’ve talked about the Medical Power of Attorney, the HIPAA release, the Living Will, and compared that Living Will to the DNR. All things that are very important. Now, I wanna make one little last comparison here between the general Durable Power of Attorney. That general Durable Power of Attorney, the one for business, that is a very important, very specific legal document. It should only be prepared by a professional and somebody who knows what they’re doing. It is not a simple document and nobody should consider it a simple document.
[25:14] John K. Ross IV: The Medical Powers of Attorney are a bit more flexible and, even better for the people out there, is there’s a federal law that requires every healthcare provider out there, hospitals, nursing homes, things like that, to provide you a Medical Power of Attorney and a Living Will, free of charge. So, you can get those things out there in the community. Now, be careful, make sure that they have things like HIPAA releases built in with them. But there are tools out there where you can get some of these things without having to pay for it, because there are free sources out there.
[25:56] Lisa B. Shoalmire: Right. And that’s what Aging Insight is about, is getting you that information and connecting you with resources so that you can get these tools in place.
[26:06] John K. Ross IV: That’s right. And so we encourage you to keep listening to the program as we talk about these topics. If you have questions, feel free to put those questions up on the internet, on our Facebook page, which is Facebook.com/aginginsight. You can also call us, we’re live on the radio 107.1 every Saturday at noon and you can call us there. And also feel free to check out our magazine which is Aging Insight. It can be found in most of your local doctors’ offices and places like that.
[26:38] Lisa B. Shoalmire: Alright. Well John, and finally I just wanna say that whomever you might select as an agent under, whether it’s a Medical Power of Attorney or the Durable Power of Attorney for business, there’s no right or wrong answers, there’s no requirements that it be your child or your spouse. And it could be different individuals that have… You may have a child that’s an RN, a child that’s an accountant, that would be great. So it’s very personal decisions and that’s what we want to do is give you the tools to make them for yourself.
[27:11] John K. Ross IV: Right, and ultimately, do ’em in a way that helps you out the best. So keep watching and we’ll see you next time.