Advance Directive to Preserve Life

September 4, 2007

Advance directive is a euphemism for outlining what a patient wants done or not done to preserve life when there is a terminal illness or the patient is in a persistent vegetative state. The advance directive is a way of respecting the wishes of a patient without having to obtain a guardian­ship. By federal law such directives are required before admission to any inpatient facility. However, they must be executed by an individual who is competent. Patients with advanced Alzheimer’s disease are not competent and would not be able to complete such a directive. In those circumstances a relative or other person previously indicated by the patient may execute an advance directive with the advice of the attending physician.In the event that an individual has reached the terminal stage of an illness and the attending physician is considering an order not to resuscitate, an order to discontinue use of a respirator, or one to discontinue feeding the patient, the family is consulted. A guardian may be appointed to give an objective view of the situation, one that the family may not yet have grasped. This is an evolving area of the law, and we may well reach the point where the consent of a guardian is required before a “do not resuscitate” order is written for a patient. This procedure is used where no advance directive has been executed or there is no durable power of attorney for health care.

Who May Be a Guardian?

The court has a great deal of latitude in selecting a guardian. Those individuals who have the most interest in the welfare of the incompetent person are the court’s first and most likely choices. In the absence of a family member or other close relative, the court will look to those who have some legitimate interest in becoming the guardian. In such case, family friends or attorneys frequently assume the role of guardian. Generally, a staff member of the administrative head of a treatment facility is not a good choice to be guardian. Such individuals have a less-than-objective involvement with the incompetent person, as each stands to gain monetarily so long as the patient continues to receive care. Such dual roles have an inherent conflict of interest and should be avoided.

What Maya Guardian Do?

Guardians operate under a grant from the court to act in the incompetent person’s interest, as if the person were deciding for himself. The powers of the guardian can be limited or complete, depending upon what the court decides is warranted by the patient’s needs. Often the incompetent person is quite capable of managing many daily activities but is unable to cope with the pressures of financial matters; here the guardian may simply be a money manager. For example, the guardian may receive social security checks, pay rent and utilities bills, and so on. Daily care is left to the individual so long as he is able.

The guardian may only act to the extent that the limited grant of power from the court allows. Should a limited guardianship be obtained, the family or the guardian will have to return to court and request a broader range of power in the event that additional responsibilities need to be assumed by the guardian as the disease progresses.

Posted in Legal Consideration