12.05.2014

|

Updates

Highlights

  • Health Care Directives enable patients to express treatment wishes in advance with respect to artificial hydration and nutrition.
  • Durable Powers of Attorney permit the designation of a representative to make healthcare decisions on a patient's behalf if needed.
  • POLST forms record a patient's treatment preferences in specific medical scenarios.

Introduction

In Washington, a competent adult has the right to control his or her healthcare treatment. Unfortunately, a patient's medical condition may prevent the patient from communicating treatment preferences to a healthcare provider when the time comes to make important healthcare decisions. Washington law allows an adult to express preferences in advance by executing a Health Care Directive, a Durable Power of Attorney and a Physician Order for Life-Sustaining Treatment form. We encourage clients to review these documents, along with other estate planning documents, on a regular basis to ensure that they continue to record preferences accurately. 

Health Care Directives

Under Washington law, a competent adult has the right to decide whether to have life-sustaining treatment withheld or withdrawn in the event of a terminal condition or a permanent unconscious condition. To exercise this right, an adult may make a written directive, known as a Health Care Directive or Living Will, instructing healthcare providers to withhold or withdraw life-sustaining treatment if two physicians determine the maker has a terminal condition or is in a permanent unconscious condition. The law defines "terminal condition" and "permanent unconscious condition" as follows: 

Terminal Condition: an incurable and irreversible condition caused by injury, disease, or illness, that, within reasonable medical judgment, will cause death within a reasonable period of time in accordance with accepted medical standards, and where the application of life-sustaining treatment serves only to prolong the process of dying. 

Permanent Unconscious Condition: an incurable and irreversible condition in which the patient is medically assessed within reasonable medical judgment as having no reasonable probability of recovery from an irreversible coma or a persistent vegetative state.

A patient or the patient's family members can provide the attending physician with a copy of the Health Care Directive to be included in the patient's medical records to ensure that the patient's intentions are honored. 

Durable Power of Attorney

Washington law also allows adults to execute a Durable Power of Attorney (DPA) that appoints another person to make healthcare decisions for them if they are unable to make or communicate decisions for themselves. The person designated in the DPA acts as the maker's agent in making healthcare decisions and is able to ensure that the directions in the maker's Health Care Directive are carried out.

Federal healthcare privacy regulations resulting from the Health Insurance Portability and Accountability Act, or "HIPAA," have dramatically restricted access to patients' healthcare information in the past decade. Healthcare providers are now much more reluctant to disclose healthcare information, even to close family members, than they were before the HIPAA regulations. A DPA may authorize an agent to obtain, communicate and utilize a patient's healthcare information in order to make informed healthcare decisions.

The Washington Department of Health currently maintains a free Living Will Registry into which residents may deposit their Health Care Directives and DPAs. Authorized healthcare providers may access documents in the Registry to verify the patient's wishes. Adults should consider whether they would like to utilize the Registry service, but they should not rely exclusively on the Registry to make their wishes known to their physicians. The Registry's ongoing operation currently depends on regular appropriations from the state budget, and state budget measures occasionally propose eliminating funding for the Registry. Adults should bear primary responsibility for ensuring that they or their designated representatives provide copies of their documents directly to their healthcare providers.

POLST Forms

In addition to executing Health Care Directives and DPAs, adults should discuss their wishes regarding healthcare with their physicians, the persons appointed under their DPAs and their family members. While discussing wishes with their physicians, adults should consider completing a Physician Orders for Life-Sustaining Treatment form, commonly referred to as the "POLST form." The POLST form may be executed in addition to a Health Care Directive, but it is not a substitute for the Health Care Directive. The POLST form enables an adult to address a wide variety of healthcare scenarios in more detail regarding the level of treatment the patient would like, such as whether or not to use antibiotics or pain-relieving medication under certain circumstances. A person may obtain a POLST form from his or her physician. The physician must also sign the form for it to be valid.

© 2014 Perkins Coie LLP


 

Sign up for the latest legal news and insights  >