Kenneth Vercammen, Esq is Chair of the ABA Elder Law Committee and presents seminars to attorneys and the public on Wills, Probate and other legal topics related to Estate Planning and Elder law. He is author of the ABA's book "Wills and Estate Administration. Kenneth Vercammen is a Central Jersey trial attorney who has published 130 articles in national and New Jersey publications. He was awarded the NJ State State Bar GP Solo Practitioner of the Year. He was a speaker at the recent ABA Annual Meeting attended by 10,000 attorneys and professionals.
Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
http://www.njlaws.com/

Saturday, May 14, 2016

Guide for Health Care Proxies

Guide for Health Care Proxies
If you are in a position to make medical decisions for someone else, this guide is for you. If you have been named in someone’s medical power of attorney or other advance directive, then you may be referred to as the person’s proxy, agent, attorney-in-fact, surrogate, or representative. These are all essentially the same job. Even if you have not been named, you may be called upon to participate in medical decisions for close family or friends who are in a medical crisis and cannot speak for themselves.
EXACTLY WHAT ARE YOUR DUTIES AS A PROXY OR AGENT?
Your duties depend on what the person’s advance directive says and upon state law. You have to read the advance directive and ask about state law. Your duties begin when the individual loses the ability to make health care decisions on his or her own.
In general, you will have authority to make any and all decisions a patient would make for
him or
1. 2. 3. 4. 5. 6. 7.
8.
herself, if able. This includes:
Receiving the same medical information the individual would receive. Conferring with the medical team.
Reviewing the medical chart.
Asking questions and getting explanations.

Discussing treatment options.
Requesting consultations and second opinions.
Consenting to or refusing medical tests or treatments, including life-sustaining treatment.
Authorizing a transfer to another physician or institution, including another type of facility (such as a hospital or skilled nursing home).

HOW TO MAKE MEDICAL DECISIONS
The toughest decision may concern beginning or stopping life-sustaining treatments. In each life there may come a time when the patient’s condition has deteriorated and it is clear that he or she will not get better. Family members or doctors may then question the value of life-sustaining treatments that seem to prolong the process of dying. Rather than thinking of this as depriving your loved one of necessary treatment, you may be protecting him or her from unnecessary pain and suffering. Many people say they do not want to die slowly, hooked up to machines, or fed artificially through tubes. What does your loved one think? Use the steps on the next page to help you decide.
ABA Commission on Law and Aging Tool 9 / Page 1
STEPS FOR A PROXY TO FOLLOW Deciding for a loved one (whom we will call Mary)
1. Findoutthemedicalfacts.Thisrequirestalkingtothedoctorsandgettingacomplete picture of the situation. Questions you can use:
  • ►  What is the name of Mary’s condition?
  • ►  If you don’t know exactly what’s wrong, what are the possibilities?
  • ►  Are tests needed to know more? Will the outcome of more testing make any
    difference in how you treat her, or in how she wants to be treated? (If not, why do
    the test?)
  • ►  What is the purpose of each test? Do these tests have risks associated with them?
  • ►  Is the information you need worth the risk of the test?
  • ►  What is her condition doing to her now?
  • ►  How do you explain her symptoms?
  • ►  What usually happens with this disease?
  • ►  What do you think now will be the likely course of this disease or condition?
  • ►  How severe or advanced is her case?
    2. Find out the options. Make sure the physician describes the risks and benefits of each option. You may want to ask:
  • ►  How will this option make Mary improve or feel better?
  • ►  What is the success rate statistically? What is success?
  • ►  Can this procedure be done on a trial basis and then reevaluated? What is an
    appropriate amount of time for a trial? Are you willing to stop it after an agreed-upon
    trial?
  • ►  What defines “success” for this option? (It may not be what Mary would consider a
    success.)
  • ►  What will it mean to her quality of life?
  • ►  If she is to die, how might it affect the circumstances of her death? (For example, will
    it likely require hospitalization instead of home care?)
  • ►  What are the possible side effects?
  • ►  What option do you recommend, and why?
    3. Figure out how Mary would decide if she knew all the facts and options. You have three possible approaches to making the decision:
    • ►  One - If you know preferences, follow them.
    • ►  Two - If you do not know Mary’s wishes for the specific decision at hand, but you
      have evidence of what she might want, you can try to figure out how she would decide. This is called substituted judgment, and it requires you imagining yourself in the patient’s position. Consider her values, religious beliefs, past decisions, and past statements she has made. The aim is to choose as Mary would probably choose, even if it is not what you would choose for yourself.
    • ►  Three - If you have very little or no knowledge of what Mary would want, then you and the doctors will have to make a decision based on what a reasonable person in the same situation would decide. This is called making decisions in the patient’s best interest. Evaluate the benefits and burdens of the proposed treatment. For example, will the treatment cause Mary pain or suffering? Is it likely to make Mary better?
ABA Commission on Law and Aging Tool 9 / Page 2

EIGHT THINGS A PROXY CAN DO TO OBTAIN GOOD CARE FOR THE PATIENT.
  1. Prepare in advance with the individual. Learn what is important to your loved one in making health care decisions. Do this before he or she loses the ability to decide. Talk about beliefs and values regarding living, and dying. Talk about spiritual beliefs.
  2. Make yourself and your role known to the medical staff. Make sure the advance directive is in the medical chart and medical personnel know its contents. Keep a copy yourself, handy, to show to people involved in the individual’s medical care. Keep in touch with these people.
  3. Stay informed about the person’s condition as it changes. Medical conditions change. Staff at the hospital change. Identify the person who can best keep you informed of the individual’s condition. Stay involved and be flexible. Read the medical record every day.
  4. Push to make someone responsible for overall care. Usually there are many medical personnel involved in the patient’s care, none of whom wants to take full responsibility for the entire patient. Insist that one person be given overall responsibility to manage the patient’s care and provide the necessary continuity during the entire period of care.
  5. Keep the family informed, if appropriate. You may have the legal authority to make medical decisions even if family members disagree. However most proxies are more comfortable if there is agreement among loved ones. Good communication can foster consensus. But you may also need help in resolving family disagreements. Ask for the facility’s patient representative or ombudsman, social worker, clergy or spiritual advisor. Or ask for the ethics committee or ethics consultant.
  6. Anticipate transfers. Make sure when the patient is moved from one section of the hospital to another, or to a different facility, that you know the treatments to be continued or begun after the transfer. Meet with the medical team or head nurse to ensure that they are aware of the ordered treatment.
  7. Advocate on the patient’s behalf and assert yourself with the medical team, if necessary. Some medical people may not be as comfortable as others with your involvement. You may disagree with the doctor’s recommendations. It is hard to disagree with medical professionals and institutional authorities. Be tactful and assertive. Insist that medical issues be explained to you in words you can understand. If their resistance becomes a problem, or if you feel you are not being heard, ask for help. Ask for help from the facility’s patient representative or ombudsman, social worker, clergy or spiritual advisor, ethics committee or ethics consultant. Be a squeaky wheel, if need be.
  8. Retain the help of a private care manager if you are unable to work with the medical team on your own. A care manager usually has an advance nursing or social work degree. She or he can help you understand the medical record, attend care conferences, and advise you if the care is deficient or inappropriate.
ABA Commission on Law and Aging Tool 9 / Page 3
source http://www.americanbar.org/content/dam/aba/migrated/aging/toolkit/tool9.authcheckdam.pdf 

What To Do After Signing Your Health Care Advance Directive

What To Do After Signing
Your
Health Care Advance Directive
GOOD ADVANCE PLANNING IS A CONTINUING CONVERSATION
Advance planning for health care is always a work in progress. That’s because circumstances change, and lives change. One’s values and priorities even change. As a sage remarked, “The world looks different when you’re horizontal rather than vertical.”
FIVE TIMES TO RE-EXAMINE YOUR HEALTH CARE WISHES...
Re-examine your health care wishes whenever any of the “Five D’s” occur:
  1. Decade – when you start each new decade of your life.
  2. Death – whenever you experience the death of a loved one.
  3. Divorce – when you experience a divorce or other major family change.
  4. Diagnosis – when you are diagnosed with a serious health condition.
  5. Decline – when you experience a significant decline or deterioration of an existing health condition, especially when it diminishes your ability to live independently.
IF YOUR WISHES CHANGE...
Make a new advance directive if your old one no longer reflects your wishes. Ask about the proper way to cancel or amend your existing directive in your state. If you change your advance directive, it is important to notify everyone who has copies of your old medical directive forms.
WHAT TO DO WITH YOUR ADVANCE DIRECTIVE
  1. Keep the original copy of your health care advance directive and these work sheets or other notes some place they can be easily found.
  2. Give your chosen proxy a copy of the directive plus any worksheets or notes. Make sure your proxy knows where to find the original.
ABA Commission on Law and Aging Tool 8 / Page 1

  1. Give your doctor a copy of your directive. Make certain it is put in your medical record. Make sure your doctor will support your wishes. If your doctor has objections, you need to work them out or find another doctor.
  2. Carry an advance directive wallet card with you.
  3. If entering a hospital or nursing home, take a copy of your directive with you and ask that it be placed in your medical record.
  4. Some organizations offer to register advance directives electronically and enable health care institutions to access them electronically. Some churches and synagogues keep advance directives on file for members. You may wish to consider such a service.
IF YOU DONT WANT EMERGENCY CPR, ONE MORE STEP...
After completing your Advance Directive, you may have to take one more step if you want to avoid CPR (cardio-pulmonary resuscitation) or other life support when an ambulance (911) is called.
Some people with serious and irreversible conditions do not want an emergency medical team to give them CPR if their heart stops. If this is your wish, ask how to get a DNR Order (Do-Not- Resuscitate Order) that will be respected outside of hospitals. These are also called Out-of- Hospital DNR Orders, Comfort-Care-Only Orders, or by other similar names. They usually require your physician’s signature and your consent. You will get a special identifying bracelet or document that must be visible if you have a medical crisis. If the emergency medical team sees the proper bracelet or document upon arrival, you can expect to receive all necessary comfort care—but not life support
ABA Commission on Law and Aging Tool 8 / Page 2
source http://www.americanbar.org/content/dam/aba/migrated/aging/toolkit/tool8.authcheckdam.pdf 

Conversation Scripts: Getting Past the Resistance WHY TALK ABOUT MEDICAL PREFERENCES IN ADVANCE?

Conversation Scripts: Getting Past the Resistance
WHY TALK ABOUT MEDICAL PREFERENCES IN ADVANCE?
Tool #6
Communication is the single most important step in health care planning. Talk about your wishes with the people who may be called upon to speak or decide for you. Why is this important?
  1. No matter what your advance directive says, others will not fully understand your wishes. The more thoroughly you communicate, the easier it will be for everyone to respect your wishes.
  2. It will help you think about what you want. Others will ask you questions or tell you things that will make you think about your wishes in another way.
  3. It will help your loved ones make difficult decisions with less pain, doubt, and anxiety.
  4. It may save money. Sometimes families continue medical treatments long past the point where they are helpful, simply because they are unsure what their loved one
    would have wanted. This is emotionally and financially costly ... and unnecessary.
  5. It may even bring your family closer together.
STARTING THE DISCUSSION
There’s no “right” way to start. Nor is there a “right” time. Nor does the discussion necessarily have to be somber and mournful. Here are some suggestions for getting started:
  • Start with a story of someone else’s experience:
    “Do you remember what happened to so-and-so and what his family went through? I don’t want you to have to go through that with me. That’s why I want to talk about this now, while we can.”
    “Neither Richard Nixon nor Jackie Kennedy was placed on life support. I wonder if they had living wills and made what they wanted clear in advance.”
  • Blame it on your attorney:
    “Mr. Darrow, my lawyer, says that before I complete some legal documents, I need to talk
    over with you some plans about end-of-life medical care.”
  • Use the worksheets provided in this packet to guide the discussion. A variety of other workbooks are also available. (See Tool #10 – Resources: Advance Planning.)
ABA Commission on Law and Aging Tool 6 / Page 1

  • Use a letter, tape, or video recording as a starting point. At first, it may be easier for people to hear what you have to say if you are not there. Afterwards they may be more ready to sit down and talk with you.
    “Mom, I don’t see what good it does to talk about such things. It’s all in God’s hands anyway.”
    “Dad, I already know you don’t want any heroic measures if things are really bad. There’s nothing more we need to discuss about it. We’ll do the right thing if the situation arises.”
    “I just can’t talk about this. It’s too painful, and talking about it just makes it more likely that it will happen.”
  • Be firm and straightforward.
    “I know this makes you feel uncomfortable, but I need you to listen, to hear what I have to
    say. It’s very important to me.”
    “Yes, death is in God’s hands, but how we live until that moment is in our hands, and that’s what I need to talk to you about.”
    “If it is too overwhelming for you right now, I understand. But let’s make an appointment for a specific time to sit down together to discuss this. All right?”
  • Point out the possible consequences of not talking now.
    “If we don’t talk about this now, we could both end up in a situation that is even more
    uncomfortable. I’d really like to avoid that if I could.”
  • Ask someone to be your spokesperson.
    If you are able to connect well with one family member or friend, ask this person to initiate and lead the discussion with other family members or your doctor. This may make your job of explaining, clarifying, and answering questions easier.
page2image16016
RESISTANCE TO THE DISCUSSION IS COMMON, FOR EXAMPLE...
page2image16904
IN RESPONSE...
ABA Commission on Law and Aging Tool 6 / Page 2 
source http://www.americanbar.org/content/dam/aba/migrated/aging/toolkit/tool6.authcheckdam.pdf 

After Death Decisions to Think About Now


After Death Decisions to Think About Now
Name & Date_______________________________________
After the death of a loved one, family and friends are often left with some tough decisions. You can help ease the pain and anxiety by making your wishes—about burial, autopsy, and organ donations—clear in advance.
Tool #5
ORGAN AND TISSUE DONATION
DID YOU KNOW?
  • !  More than 68,000 patients are on the national organ transplant waiting list. Each day, 13 of them will die because the organs they need have not been donated. Every 16 minutes, a new name will be added to that waiting list.
  • !  Organs you can donate: Heart, Kidneys, Pancreas, Lungs, Liver, Intestines.
  • !  Tissue you can donate: Cornea, Skin, Bone Marrow, Heart Valves, Connective Tissue.
  • !  To be transplanted, organs must receive blood until they are removed from the body of the
    donor. Therefore, it may be necessary to place the donor on a breathing machine temporarily or
    provide other organ-sustaining treatment.
  • !  If you are older or seriously ill, you may or may not have organs or tissue suitable for
    transplant. Doctors evaluate the options at or near the time of death.
  • !  The body of an organ donor can still be shown and buried after death.
1. Do you want to donate viable ORGANS for transplant? (Circle one)
Yes
Not sure
No
If Yes, check one:
____ I will donate any organs.
____ Just the following: _______________________________

2. Do you want to donate viable TISSUES for transplant? (Circle one)
Yes
Not sure
No
If Yes, check one:
____ I will donate any organs.
____ Just the following: ____________________________

Attention! If you circled Yes for either of the above, be sure to write this into your health care Advance Directive. You may also fill out an organ donor card or register as an organ donor when you renew your driver’s license. But be sure to tell your proxy and loved ones. Make sure they will support your wishes. Even with an organ donor card, hospitals will usually ask your proxy or family to sign a consent form.
ABA Commission on Law and Aging Tool 5 / Page 1

3. If you do not donate organs or tissue, you may choose to donate your WHOLE BODY for medical research or education. Would you like to do this?
Yes Not sure No
If you circle Yes, you must contact a medical institution to which you are interested in making this donation. Medical schools, research facilities, and other agencies need to study bodies to gain greater understanding of disease mechanisms in humans. But, this kind of donation must be accepted by the medical institution. Note that total body donation is not an option if you also choose to be an organ or tissue donor.
4. Would you agree to an autopsy? (Autopsies, done after death, are used for diagnostic and research purposes. The body can still be shown and buried.)
Yes Not sure No
BURIAL ARRANGEMENTS
5. I would prefer to be: (circle one)
Buried Cremated No Preference
  1. I would like my remains to be placed:
  2. What are your thoughts about your memorial service—such as songs or readings you want, or the people you hope will participate?
  3. Other preferences:
ABA Commission on Law and Aging Tool 5 / Page 2
source http://www.americanbar.org/content/dam/aba/migrated/aging/toolkit/tool5.authcheckdam.pdf 

How Do You Weigh Odds of Survival?



How Do You Weigh Odds of Survival?
Name & Date___________________________________
People evaluate the pros and cons of medical treatments in very personal ways. This explains why some people may choose a treatment and others reject it. A big question is, how much would you be willing to endure if the chances of regaining your current health were high? What if the chances were low? Answer the questions below to assess your willingness to take such risks.
Imagine that you are seriously ill. The doctors are recommending treatment for your illness, but the treatments have very severe side effects, such as severe pain, nausea, vomiting, or weakness that could last for months.
Question: Would you be willing to endure such severe side effects if the chance that you would regain your current health was:
(Circle one answer for each)
High (over 80%) Moderate (50%)
Low (20%)
Very low (less than 2%) Very, very low

(less than 1 in 1,000)
Additional comments:
Yes Not sure No Yes Not sure No Yes Not sure No Yes Not sure No
Yes Not sure No
ABA Commission on Law and Aging
Tool 3 / Page 1
Tool #3 source http://www.americanbar.org/content/dam/aba/migrated/aging/toolkit/tool3.authcheckdam.pdf 

Are Some Conditions Worse Than Death?

Are Some Conditions Worse Than Death?
Name & Date________________________________
This worksheet helps you to think about situations in which you would not want medical treatments intended to keep you alive. These days, many treatments can keep people alive even if there is no chance that the treatment will reverse or improve their condition. Ask yourself what you would want in the situations described below if the treatment would not reverse or improve your condition.
Directions: Circle the number from 1 to 5 that best indicates the strength and direction of your desire. If you wish, you can add additional thoughts on the Comment lines.
  1. 1  -- Definitely want treatments that might keep you alive.
  2. 2  -- Probably would want treatments that might keep you alive.
  3. 3  -- Unsure of what you want.
  4. 4  -- Probably would NOT want treatments that might keep you alive.
  5. 5  -- Definitely do NOT want treatments that might keep you alive.
page1image10008
What If You . . .
a. No longer can recognize or interact with family or friends.
Definitely Want Treatment
Definitely
Do Not Want Treatment

1 2 Comment__________________________________________________________________
  1. No longer can think or talk clearly. 1 2 3 4 5 Comment__________________________________________________________________
  2. No longer can respond to commands or requests. 1 2 3 4 5 Comment__________________________________________________________________
  3. No longer can walk but get around in a wheel chair. 1 2 3 4 5 Comment__________________________________________________________________
  4. No longer can get outside and must spend all
    day at home. 1 2 3 4 5

    Comment__________________________________________________________________
  5. Are in severe untreatable pain most of the time. 1 2 3 4 5
    Comment__________________________________________________________________
ABA Commission on Law and Aging Tool 2 / Page 1
3
4
5
Tool #2

What If You . . .
g. Are in severe discomfort most of the time (such as nausea, diarrhea).
Definitely Want Treatment
1 2
3
4
Definitely
Do Not Want Treatment

5
page2image4664
Comment__________________________________________________________________
  1. Are on a feeding tube to keep you alive. 1 2 3 4 5
    Comment__________________________________________________________________
  2. Are on a kidney dialysis machine to keep you alive. 1 2 3 4 5
    Comment__________________________________________________________________
  3. Are on a breathing machine to keep you alive. 1 2 3 4 5
    Comment__________________________________________________________________
  4. Need someone to take care of you 24 hours a day. 1 2 3 4 5
    Comment__________________________________________________________________
  5. No longer can control your bladder. 1 2 3 4 5
    Comment__________________________________________________________________
  6. No longer can control your bowels. 1 2 3 4 5
    Comment__________________________________________________________________
  7. Live in a nursing home permanently. 1 2 3 4 5
    Comment__________________________________________________________________
o.Other: 12345
Explain____________________________________________________________________
ABA Commission on Law and Aging Tool 2 / Page 2 
source page1image456
Are Some Conditions Worse Than Death?
Name & Date________________________________
This worksheet helps you to think about situations in which you would not want medical treatments intended to keep you alive. These days, many treatments can keep people alive even if there is no chance that the treatment will reverse or improve their condition. Ask yourself what you would want in the situations described below if the treatment would not reverse or improve your condition.
Directions: Circle the number from 1 to 5 that best indicates the strength and direction of your desire. If you wish, you can add additional thoughts on the Comment lines.
  1. 1  -- Definitely want treatments that might keep you alive.
  2. 2  -- Probably would want treatments that might keep you alive.
  3. 3  -- Unsure of what you want.
  4. 4  -- Probably would NOT want treatments that might keep you alive.
  5. 5  -- Definitely do NOT want treatments that might keep you alive.
page1image10008
What If You . . .
a. No longer can recognize or interact with family or friends.
Definitely Want Treatment
Definitely
Do Not Want Treatment

1 2 Comment__________________________________________________________________
  1. No longer can think or talk clearly. 1 2 3 4 5 Comment__________________________________________________________________
  2. No longer can respond to commands or requests. 1 2 3 4 5 Comment__________________________________________________________________
  3. No longer can walk but get around in a wheel chair. 1 2 3 4 5 Comment__________________________________________________________________
  4. No longer can get outside and must spend all
    day at home. 1 2 3 4 5

    Comment__________________________________________________________________
  5. Are in severe untreatable pain most of the time. 1 2 3 4 5
    Comment__________________________________________________________________
ABA Commission on Law and Aging Tool 2 / Page 1
3
4
5
Tool #2
What If You . . .
g. Are in severe discomfort most of the time (such as nausea, diarrhea).
Definitely Want Treatment
1 2
3
4
Definitely
Do Not Want Treatment

5
page2image4664
Comment__________________________________________________________________
  1. Are on a feeding tube to keep you alive. 1 2 3 4 5
    Comment__________________________________________________________________
  2. Are on a kidney dialysis machine to keep you alive. 1 2 3 4 5
    Comment__________________________________________________________________
  3. Are on a breathing machine to keep you alive. 1 2 3 4 5
    Comment__________________________________________________________________
  4. Need someone to take care of you 24 hours a day. 1 2 3 4 5
    Comment__________________________________________________________________
  5. No longer can control your bladder. 1 2 3 4 5
    Comment__________________________________________________________________
  6. No longer can control your bowels. 1 2 3 4 5
    Comment__________________________________________________________________
  7. Live in a nursing home permanently. 1 2 3 4 5
    Comment__________________________________________________________________
o.Other: 12345
Explain____________________________________________________________________
ABA Commission on Law and Aging Tool 2 / Page 2
americanbar.org/content/dam/aba/migrated/aging/toolkit/tool2.authcheckdam.pdf