Transcript By Will - Iden Law Offices

Chapter 6
Advance Directives
Learning Objectives
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Understand what Advance Directives Are
Understand the Need and Purpose of a Living Will
Understand the Key Components of a Living Will
Understand what a Do Not Resuscitate Order is and
How it Takes Effect
Understand the Role and Authority of Health Care
Surrogates and Proxies
Understand How a Durable Powers of Attorney
Operate
Understand Anatomical Gifts and How they are Made
Understand what POLST and Death with Dignity laws
are
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Critical Cases In The History Of The Right
To Die
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Karen Ann Quinlan (1976)
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Nancy Cruzan (1990)
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NJ Supreme Court held that privacy rights included the right
to be removed from life prolonging machine
US Supreme Court ruled against Nancy’s parents
NJ trial court, in a new case, ordered Nancy’s feeding tubes
removed
Terry Schiavo (2005)
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her husband, as guardian, sought to have her feeding tube
removed, over the urgent opposition of her parents
after fractious legal and political battles, her feeding tube
was removed 15 years after her coma
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© 2011, 2007, 2001 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Advance Directives
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What are They?
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witnessed written documents or oral stipulations
concerning a person’s future health care decisions
Key Advance Directives
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Living Wills
health care proxies and surrogates
durable powers of attorney
do not resuscitate orders (DNRO)
anatomical gifts
POLST
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© 2011, 2007, 2001 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Living Wills
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Declarations directing the refusal or
continuation of medical treatment during
terminal conditions
“Life-prolonging procedures” don’t include
those solely to provide comfort or alleviate pain
“Terminal condition” is one characterized by
absence of voluntary action or cognitive
behavior – no reasonable probability of
recovery
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© 2011, 2007, 2001 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Common Requirements For A Living Will
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Personal Data of the Declarant
Statement of willful and voluntary desire to not
prolong life
Declaration on Life-Prolonging Procedures or their
Refusal, and their Triggering Conditions
Statement of Nullity if Declarant is Pregnant During
Triggering Conditions
Hold Harmless Statement
Necessary Signatures
Notary Public’s Acknowledgment
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© 2011, 2007, 2001 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Do Not Resuscitate Order
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Advance Directive Executed by a Terminally
Ill Patient
Must be Executed Strictly According to the
Law of the Declarant’s Jurisdiction
Declares the Patient doesn’t want Resuscitation
for Cardiac Arrest or Respiratory Failure
DNROs Must be Printed on a State AgencyCreated Form
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© 2011, 2007, 2001 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Health Care Surrogates And Proxies
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One appointed by the declarant to make health care
decisions if declarant is unable to do so
The surrogate should not be one with a conflict of interest
This appointment must be in writing and witnessed by at
least two witnesses
Some of the surrogate’s powers include:
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reviewing medical records
giving consent for medical procedures
applying for Medicare/Medicaid benefits
Not all decisions can be made by the surrogate/proxy:
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abortion
sterility procedure
shock therapy
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© 2011, 2007, 2001 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Durable Power Of Attorney
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Unlike a traditional power of attorney, the
durable power of attorney survives or begins
during the principal’s incapacity
The principal must be competent when
executing the durable power of attorney
The attorney in fact, or agent, is the person the
principal appoints in the durable power of
attorney
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© 2011, 2007, 2001 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Anatomical Gifts
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What Are They?
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Why Do It?
 As of June 2009, 102,042 people were waiting for
transplants. One-quarter of those will die because an organ
will not be available.
 At least eight people die each day for lack of a donor.
Confusions The Paralegal Can Resolve For The Client
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Donating all or part of one’s body at death for transplants
There is no fee to donate
Donation will not delay funeral arrangements
How Old Must A Donor Be?
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At least 18
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© 2011, 2007, 2001 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
How May One Become A Donor?
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By Will
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By Donor Card
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not a good idea
much better idea
can be stated on one’s driver’s license
By The Decisions Of Others
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decision made for the decedent by one with
authority
parents/guardians can do so for minors
surviving spouses can also
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© 2011, 2007, 2001 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
POLST
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POLST means “Physicians Orders for LifeSustaining Treatment”
Purpose:
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facilitate the development, implementation and
evaluation of POLST Paradigm Programs in the
U.S.
educate the public and health care professionals
regarding the POLST Paradigm
support, perform, and fund research related to endof-life care
improve the quality of end-of-life care
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Herskowitz
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© 2011, 2007, 2001 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Death with Dignity Laws
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Allows the terminally-ill to end their lives
through the voluntary self-administration of
lethal medications, expressly prescribed by a
physician for that purpose.
Patients determine the timing of their own
deaths
Obtain assistance from a physician to
implement the decision
A good idea?
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Herskowitz
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© 2011, 2007, 2001 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
What Can A Paralegal Do In The Advance
Directives Area?
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Discuss the advantages with clients and answer
their questions…without giving legal advice
Research the applicable law on correctly
executing advance directives
Contact the key parties or family members
needed to effectuate the client’s wishes
Draft the advance directives
Witness their execution
Wills, Trusts, and Estates Administration, 3e
Herskowitz
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© 2011, 2007, 2001 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.