Advance Directives for Health Care, in contrast to POLSTs (Physician Orders for Life Sustaining Treatment - see earlier article), are used to provide information and authority to substitute decision makers who are operating in a less urgent situation.
The first thing that Advance Directives do is to set out your preferences regarding tube feeding, life support and the like in certain situations.
Advance Directives also confer authority on someone other than yourself to analyze a situation, and then give instructions to doctors. For example, Advance Directives can be used to determine who gets to decide when to pull the plug, who can consent to non-emergency surgery (which may be non-emergency, but nonetheless necessary to sustain life), etc.
POLSTs do NOT confer on any third party the authority to make such decisions.
POLSTs do not give authority to a third party to give directions to a physician. Advance Directives for Health Care, if properly and completely filled out, do give (limited) authority to a third person to give instructions to physicians.
This power or authority includes both the power to make health care decisions in situations other than the end of life, and in end of life situations.
Advance Directives for Health Care have to be properly filled out to be effective. An unfortunate number of Advance Directives for Health Care are either filled out incompletely, or are filled out in ways that are internally inconsistent.
Further, if there is a particular area of concern, as there are for many people, various special conditions can be inserted into the form that is specified by the Legislature. There are a wide range of special conditions that are commonly suggested by highly skilled elder law attorneys. These have the potential to significantly increase the usefulness and effectiveness of Advance Directives for Health Care in a variety of situations.
A person who is nominated as a Health Care Representative under an Advance Directive for Health Care can also authorize the release of protected health information if the person is unable to make or communicate health care decisions themselves.
A relatively recent development which came into effect in 2012 allows a Health Care Representative under an Advance Directive for Health Care to put someone into a locked mental health or dementia treatment facility, permanently, and without any involvement of the court or other oversight, provided that a physician agrees with this course of action. Until 2012, this was expressly banned. Special conditions that can be inserted into an Advance Directive for Health Care may limit this power.
POLSTs and Advance Directives for Health Care are two completely different kinds of documents which do completely different things, and have completely different purposes.
Steven A. Heinrich
Divorce & Custody
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