The Honolulu Star-Advertiser has featured several stories by reporter Dan Nakaso about the plight of Karen Okada. Karen is a 95-year-old woman who signed a “Death with Dignity Declaration” and a “Durable Power of Attorney for Health Care Instructions” back in 1998. Both documents purport to control “in all circumstances.”
The Queen’s Medical Center has determined that Karen is essentially brain dead, or, in any event, has “permanently” lost the ability to participate in medical treatment decisions, and that the provisions of her Death with Dignity Declaration now require that her feeding tube be withdrawn.
On the other hand, Karen’s healthcare agent, in consultation with doctors who are not associated with Queen’s, disagrees with the hospital’s physicians. What the agent knows, and the Queen’s physicians discount, is that just before she was hospitalized, Karen was conscious and able to interact meaningfully with her family and caregivers. During the time she has been at Queen’s with pneumonia, Karen has been unresponsive during examinations, but she has smiled at least twice at her adult grandchildren and nodded to her grandson in response to his question of whether she was able to breathe freely.
The policy of Queen’s is to give precedence to an advance healthcare directive over a durable power of attorney in all events, and without inquiring into why a person may have signed contradictory documents. Accordingly, Queen’s sued Karen’s healthcare agent in order to get a court order forcing him to order that Karen’s feeding tube be removed.
Since no one would want to be part of this kind of drama, what can you do to make your wishes clearly known so there will be no questions?
1. If you do not have an advance health care directive, get one. Make sure your loved ones, including your children over the age of 18 have one too.
2. Learn all you can about the options that can be written into your advance health care directive. These are not “one size fits all” documents. Your wishes may differ greatly from those of your friends and family members, and the document you sign should express your particular desires.
3. If you have an advance health care directive that is more than 5 years old, there is a good chance that it will not accomplish what you think it will. Review it right away with your legal counsel. Make any appropriate changes and updates.
4. If you want to give a trusted family member or friend the power to make health care decisions for you, make sure the power of attorney meshes well with any other instructions.
5. Be sure to give your health care providers your permission to give your medical information to your family members or other trusted decision makers. Federal and state privacy laws restrict your doctor from talking with your health care agent unless you grant that permission.
6. Review your advance health care directive periodically to make sure it accurately states your current wishes. Once per year is not too often.
7. Make sure you have a mechanism in place for giving you access to your advance health care directive, no matter when or where an emergency might occur. Not all health problems happen at home, and if you have a crisis while you are traveling, you will need a way to make your health care documents accessible to your caregivers.
8. Talk with your family about your wishes before a crisis arises. Make sure everybody is on the same page. If your decision makers indicate hesitation about carrying out your wishes, think about naming someone who will. Your assurance to your loved ones of how seriously you intend your instructions to be taken will give them the courage to carry them out.
Knowledge is power. The more you know about advance health care directives, the more likely it will be that your wishes will be carried out.
Scott Makuakane, Attorney at Law
Specializing in estate planning and trust law.
O‘ahu: 808-587-8227, Maui: 808-891-8881