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Chronic and Community Medicaid in New York

By: Alexis Gruttadauria, Esq., Littman Krooks LLP

You have your advance directives in place; you’ve designated in your Health Care Proxy and Living Will who you want making your medical decisions once you are no longer able to make them for yourself, and you’ve instructed your agent on what those decisions should be. Now what? How do you make sure that your agent is allowed to do his or her job in ensuring that your wishes are carried out?

While arming your Health Care Agent with the knowledge of your wishes should be enough, situations may arise in which your agent is not present, or worse, his or her authority is challenged or not recognized. In a medical setting, there are other forms that may be filled out by your physician, to help ensure that the carefully thought-out goals in your advance directives are followed.

What happens in the absence of medical decision making documents?

Before you can begin ensuring that you have all the documentation in place to make sure your wishes are honored, you should understand what is going to happen in the absence of those documents. If you are near a doctor and go into cardiac or respiratory arrest, s/he WILL do everything in his or her power to keep you alive. The average medical professional will not contact your healthcare proxy and ask permission first. The same stands true for Emergency Services; providers will not take time away from saving a life to look at paperwork… unless it is the paperwork for which they are trained to look at.

How do I make sure that this does not happen to me?

The simple answer is good planning and communication between you, your Health Care Agent, and your doctors. Your primary care physician and any other medical professional that you see regularly should have a copy (not the original) of both your Health Care Proxy, and your Living Will. If you are concerned with the possibility that you may need further protections, because you are either terminally ill or very advanced in age, your doctor can discuss with you two other forms, prepared by your physician, that will work in concert with your Living Will and Health Care Proxy. In New York, they are called a Do Not Resuscitate Order (DNR) and a Medical Order for Life-Sustaining Treatment (MOLST).

The Out- of- Hospital Do Not Resuscitate Order (DNR)

Your Health Care Proxy and Living Will do not, in practice, become effective until you reach a healthcare facility. In a pre-hospital environment (ambulance), having an agent under a Health Care Proxy may not stop EMS from resuscitating you, even if the agent is present at the time.

In order to prevent resuscitation, you must have a properly executed NYS DNR form. (Available Here: https://www.health.ny.gov/forms/doh-3474.pdf)

The DNR is for use outside of a healthcare setting and will prevent emergency services or emergency room doctors from resuscitating you. If you and your doctor make the choice to utilize a DNR, it should be prominently displayed somewhere the Emergency Medical Services (EMS) will be able to see. You can also elect to wear a Medical Alert Bracelet or necklace that has “DNR” printed on it. Most EMS personnel know to look for this piece of jewelry or alternatively, a plastic baggie with a bright pink form, on the refrigerator, the freezer, or affixed to the back of the main entrance of your home.

Even though EMS is required to follow a valid DNR, providers are generally not required to make an effort to locate the document. This is why it is so important to notify your family and friends where you keep these important documents, or better yet, keep them in plain sight.

The Medical Orders for Life Sustaining Treatment Form (MOLST)

If you are inside a healthcare facility when end-of-life decisions will need to be made, the MOLST form (https://www.health.ny.gov/forms/doh-5003.pdf) should be filled out by you and your doctor, or if you do not have decision-making capacity, by your agent under your Health Care Proxy and your doctor.

This form will generally be filled out only for a patient for whom end-of-life decisions may be imminent, including when a person goes in for surgery. The form, which is typically bright pink in color, must be filled out and signed by your doctor. You, the patient, will carry the original with you wherever go, and any other doctor (or EMS personnel when transporting a patient from one healthcare facility to another) should abide by its contents. The contents of the MOLST form go beyond just an order to not restart your heart. It can encompass all of the scenarios covered in your Living Will, and may be far more detailed.

Even if a doctor does not present you with the option to complete a MOLST, upon any admission to the hospital or extended medical treatment, you or your agent may request that one be prepared. This is where your Living Will becomes invaluable. If you do not have the medical decision-making capacity to complete the MOLST with your doctor, the Living Will guides your agent and doctor in drawing up the proper medical treatment plan in order to effectuate your end-of-life wishes.

What to do after unwanted medical treatment

It is also important to remember that even if lifesaving medical treatment is implemented, you or your agent has the power to discontinue that treatment. This is why it is imperative that you and your agent know your legal rights with regard to your medical care, and the manner in which your life ends.

You and your Health Care Agent are your best advocates. Make your wishes regarding the end of your life common knowledge amongst your family and medical providers (as well as the location of your advance directives). If it is important to you that your wishes be carried out, do not be afraid to talk about the end of your life with your medical providers and family.

 

Learn more about advance health care directives at www.littmankrooks.com. Have questions about this article? Contact us.


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