With the recent health crisis, many people have been asking their lawyers if a “Do Not Resuscitate” order – commonly known as a DNR – should be part of their estate planning. It is an understandable request given how our worlds have unraveled due to the pandemic, and how many people have watched their loved ones suffer alone in hospitals. Do you really need a DNR? Most likely, the answer is no. In all likelihood, you only need a health care proxy.
What is the difference between a health care proxy and a DNR?
A health care proxy is a legal document that allows you to designate a person to make health care decisions for you. It is used if you are unable to make those decisions for yourself. For instance, if you were in a car accident and could not communicate, your health care agent would make those important decisions for you. Once you were able to communicate, you would go back to making the decisions yourself.
The ability to create a health care proxy is governed by your state’s laws, and each state has different nuances to its laws. For instance, New Hampshire allows for a durable power of attorney for both health care and a living will. The agent makes the health care decisions. The living will directs the agent in making those decisions.
Individuals can also supplement their state’s directives with additional guidance. However, make sure to abide by your state’s law in creating these additional directives. Health care institutions are extremely familiar with their state’s laws, so don’t create a situation where your medical providers will not give authority to the documents you created or your named agent has to go to court to enforce them.
Some states’ directives provide a detailed series of instructions for your agent. For instance, New Hampshire’s version includes questions as to whether you want life sustaining treatment and medically administered nutrition and hydration. Other states contain language that is broader, giving the agent more leeway to decide whether to not to “pull the plug.” Typical language includes the intention that you be removed from life support if you have a terminal illness or injury and your death is imminent.
In Massachusetts, the law allows you to create a health care proxy to name a health care agent, but also, like most states, provides an opportunity to limit the agent’s authority. For example, I once had a client who was a Jehovah Witness and wanted to restrict the agent’s ability to approve blood transfusions for religious reasons. Clients have also included provisions instructing the agent to keep them on life support for 30 or 60 days before being removed. Others have wanted to be kept alive no matter what the cost or circumstance.
Florida law allows you to name a health care surrogate as well as a pre-need guardian. The pre-need guardian would serve as your guardian in the event a court determined you were incapacitated in the future, enabling the person you name to exercise legal rights and powers necessary to care for you and your assets.
What is a DNR?
A DNR is a medical order telling care providers not to revive you. It is a document that you put in place with your physician, not your lawyer. It typically only applies to cardiac resuscitation in the event your heart stops. Some states are also adopting MOLST forms (Medical Orders for Life Sustaining Treatment) to encompass other situations such as intubation, ventilation and dialysis. These documents require an in-depth conversation between the patient and the health care provider. They are typically used as part of end of life care when a client has an advanced stage terminal illness. They are not to be taken lightly, and not to be used for healthy people.
As I tell my clients, you want to be treated – and resuscitated – if you have a heart attack. There may be a time when you need a DNR, but most likely it is not now. If that time comes, you will need to have a conversation with your physician about a DNR. However, you should speak with your attorney about your health care proxy, especially if you don’t already have one. Whether it’s COVID-19 times or not, a health care proxy is a key component of a robust estate plan.
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