By: Rudman Winchell Attorney Tracy J. Roberts
As a patient, you have the right to be informed about your medical condition and alternative forms of treatment, to participate in decisions concerning care, and to have health care wishes respected. But what if you become so ill that you lose the ability to make decisions about health care? In that circumstance, your health-care provider is required to refer to your Advance HealthCare Directive, and to consult your Agent.
The first step in planning for healthcare decisions in the event of incapacity is to learn about options and make decisions about the kind of care you would choose if you were seriously ill or injured. If you were unable to make decisions for yourself, who do you want to make decisions for you? Are there circumstances in which you would not want your life prolonged? Would you choose pain relief treatment even if it would hasten your death?
Under Maine law, if you are a competent adult or emancipated minor, you may prepare an Advance HealthCare Directive which authorizes an agent to make any health care decisions for you. The Advance HealthCare Directive remains in effect even if you become incapacitated. Your Advance HealthCare Directive may also include specific healthcare instructions setting forth your choices about the provision or withdrawal of life-sustaining treatment in certain circumstances, the provision of artificial nutrition and hydration, and treatment for pain relief. Your healthcare Agent must make decisions in accordance with the instructions you have recorded in the Advance HealthCare Directive. If no decisions have been recorded, your Agent is required to make decisions in accordance with your best wishes, and in doing so, must consider your personal values to the extent known by your Agent.
If you complete an Advance HealthCare Directive, it is recommended that you discuss its contents and location with any healthcare Agent you name in the Directive, with your healthcare provider, and with family members and loved ones. Your physician should be given a copy of the Advance HealthCare Directive for your medical file, and a copy should also be provided to any health care institution at which you anticipate receiving any treatment in the future.
What if you become incapacitated and have not prepared an Advance Health Care Directive? A surrogate may make decisions to withhold or withdraw life-sustaining treatment for a patient who lacks capacity if the patient is in a terminal condition or a persistent vegetative state. Maine law identifies classes of the patient’s family, in descending order of priority, who may act as surrogates. The list begins with the spouse and goes through various family relations and relationships.
Finally, keep in mind that the law relating to making and recording decisions regarding health care is subject to change. New legislation may change the law and may affect documents you have prepared. It is wise to review any written instructions you have made regarding health care every five years to at least affirm that the documents still record your wishes.