Journal Issue Date: Jun 2019
Journal Name: Vol 55 No 6
In our February 2019 column we asked, “Are you drafting Powers of Attorney for financial decisions with language that is different for seniors than the ones you draft for younger clients?” Now we’re asking you the same question regarding Health Care Directives. In the hope that people will use some type of substituted decision-making authority for medical decisions, Tennessee now recognizes seven different ways that this can be done. Drafting a document that is tailored to your client, and that will be accepted by health care providers, will hopefully result in the most appropriate care for that client.
Health Care Power of Attorney
(Tenn. Code Ann. §34-6-201 et seq.) The “traditional” health care directive. The statutes governing the HCPOA were adopted in Tennessee in 1990, and the use of this document is still the best document for your clients to have to address their medical needs. In its simplest form this document gives blanket authority for one person to make health care decisions for the principal when the principal is unable to do so. But there is no reason for this document to be simple. In fact, you and your client should consider the following possible provisions:
Unorthodox treatment: Give the agent the authority to order unorthodox treatments and/or therapies, even though Medicare may not pay for them. Biofeedback, massage therapy, acupuncture, water mattresses, and unusual treatments and devices can relieve the symptoms of many afflictions common to seniors. Sufferers of diseases such as Alzheimer’s, Lewy Body dementia and Parkinson’s can all benefit from treatments and therapies not normally covered by insurance.
Chemical Restraints: Give the agent specific authority to order chemical restraints. That may be the only way that a long-term care facility will allow an otherwise combative or uncontrollable patient to enter or remain, which in turn keeps the patient in a safe environment.
Implanted Devices: If your client has a defibrillator or pacemaker or any other type of implanted device, then say so in the HCPOA. Specify under what circumstances that device is to be deactivated. Failing to deactivate a device when the body is otherwise trying to shut down can result in the device continuously going off. That is a gut-wrenching process to watch, is physically distressing to your client, and emotionally distressing to the family.
Religion: Does your client practice a religion that has certain end-of-life ceremonies, or certain instructions and/or restrictions for the dying/death process? For example, persons who are Catholic, Jewish, Seventh Day Adventist, Shinto, Jehovah’s Witness or Christian Scientist may want to execute a health care power of attorney that complies with his or her religious doctrines.1
EXAMPLE: I am Jewish. It is my desire and I direct my Agent to make health care decisions in accordance with my religious and moral beliefs and the tenets of Jewish law and custom (Halacha) as determined in accordance with Orthodox interpretation and tradition. Should this directive be unclear in any way, or if any questions arises as to the requirements of Jewish law and custom, I direct my Agent to consult with and follow the guidance of an Orthodox Rabbi whose guidance on issues of Jewish law and custom my Agent in good faith believes I would respect and follow.
EXAMPLE: I am Catholic. As preparation for the final journey of his life, if I suffer from serious illness and infirmity, I direct my agent to arrange for my reception of the Roman Catholic sacrament of Anointing of the Sick and the Eucharist of Viaticum. I further request that my family, the Catholic community and all my friends join me in prayer and sacrifice as I prepare for death; remembering always how I love life as given to me by God. I further request, after my death, others continue to pray for me that, with God’s grace, I will enjoy eternal life.
Funeral/Burial: Does your client have specific directions for disposition of his or her remains? The agent under a health care power of attorney has authority to direct such disposition.2 If your client wants to be cremated, then you will help the family avoid a lot of hassle at the time of cremation if the crematory can rely on the specific language in the power of attorney. We always have on hand copies of the permit needed to scatter ashes in the Great Smoky Mountains National Park,3 and we freely hand out the site contact for a free (yes, free!), green burial available in Tennessee.4 Clients find information about sea scattering services, artificial reef placement, glass artwork containment, and fireworks deployment of ashes to be very interesting.
Advance Directive/Advance Care Plan
This is the one we do not use, although it is the one presented on the www.TN.gov website with the instruction, “This form replaces the old forms for durable power of attorney for health care, living will, appointment of agent, and advance care plan, and eliminates the need for any of those documents.”5 Good intentions, but many seniors, their families, and health care providers do not like it. So, we quit using it a month after the first version came out in 2004 and have used the traditional HCPOA — without problems — ever since.
Declaration for Mental Health Treatment
(Tenn. Code Ann. §33-6-1001 et seq.) Seniors suffer from mental illness just like any other demographic. This advance directive allows a person to give preferences for treatment, medications and hospitalization that are specific to his or her mental illness. Unlike the traditional health care POA this declaration will automatically expire two years from the date of signing unless a lesser time limit is specified in the document or it has otherwise been revoked. For a number of reasons these documents can be difficult for a client to sign; however, once signed they are consistently accepted and utilized by health care providers, and work very well to avoid a conservatorship proceeding.
(Tenn. Code Ann. § 31-11-101 et seq.) This document is confusing as named because so many clients think it has something to do with a traditional Last Will and Testament. We often refer to it as the “pull the plug document.” This dying declaration has not substantially changed since 1991, and is a very important document that begs for your explanation and guidance.
The choice about the use or discontinuance of “nutrition and hydration” (feeding tube) is written backwards, which results in clients making a choice that is the opposite of what they want. And, many seniors still shy away from being organ donors. When they choose “do not desire to donate” always ask, “Do you mean you will not donate to anyone, even family members?” You will be surprised how many will then change their mind and state on the document that they will donate “to immediate family members.” When they tell you that their organs are “too old” point out that there is no age limit.6 If it means staying alive a recipient would welcome an 85-year-old kidney!
General Presumption for Life
As Living Wills have gained acceptance and use, many seniors remain suspicious of their purpose and use — often fearing that the “plug” is pulled in haste. As an alternative we offer a document that directs the use, and expenditure of funds, for the continuation of care and treatment if such treatment will sustain any form of life.
POST (Physician Orders for Scope of Treatment)
Essentially replaces and expands the DNR (Do Not Resuscitate) to give more detail about life-sustaining measures, but does not replace the HCPOA.
[Tenn. Code Ann. § 68-11-1806 (c)] Within the Tennessee Health Care Decisions Act is a provision that outlines a procedure to allow a health care provider to appoint a health care surrogate for a patient who has either not appointed one in a HCPOA or other document, or the surrogate or agent so appointed is not reasonably available.
In either case the patient has to be currently unable to appoint such a surrogate or agent because of lack of capacity. The statute goes on to list by order of preference the person the health care provider should consider as well as other factors to consider in such a surrogate appointment. Theoretically, this provision makes sense as it provides an alternative way to make sure someone can have authority to make health care decisions. In real life, however, few doctors will use this authority. Think the process through to the end; the doctor chooses a decision-maker who agrees with the doctor so it is the doctor making the health care decision. Try getting that past their risk management office!
Matt and Kelly Frere are husband/wife partners in the Elder Law firm Guyton & Frere in Lenoir City. They are members of the Council of Advanced Practitioners of NAELA. Matt was Tennessee’s first certified Elder Law attorney.
1. This trust is mandated by 42 U.S.C. 1. For assistance with specific religious forms please contact our office.
2. Tenn. Code Ann. §34-6-204(b).
4. Narrow Ridge Natural Burial Preserve. https://narrowridge.org/about/natural-burial-