What are “Advance Directives”? Advance Directives are legal documents that explain a person’s choices about medical treatment or designate someone to make decisions about that person’s medical treatment if he/she is incapacitated. These documents are referred to as “advance” directives because they are prepared in advance so that a patient’s health care providers will know the patient’s wishes concerning medical treatment.
Louisiana law recognizes 2 types of advance directives:
1) A Living Will (also known as a Declaration); and
2) A Durable Power of Attorney for Health Care. LIVING WILL (DECLARATION) A living will is referred to as a “declaration.” “Declaration” means a witnessed document, statement, or expression voluntarily made by an adult person directing the withholding or withdrawal of life-sustaining procedures in the event such person should have a terminal and irreversible condition. A living will can be in writing or in the form of an oral or nonverbal declaration.
If it is in writing, the written declaration must be signed by the declarant in the presence of two witnesses.
It is the responsibility of the patient to notify his/her attending physician that a declaration has been made. In the event the patient is comatose, incompetent or otherwise mentally or physically incapable of communication, any other person may notify the physician of the existence of the declaration.
Any attending physician who is notified shall promptly make the declaration or copy of the declaration a part of the medical records.
ORAL or NONVERBAL:
An oral or nonverbal declaration may be made by an adult in the presence of two witnesses at any time after the diagnosis of the terminal and irreversible condition.
If the declaration is oral, the physician shall make a recitation of the reasons the patient could not make a written declaration, and make the recitation a part of the patient’s medical records. It is good practice for the attending physician to include in the medical records the names of the two (2) witnesses, and have the witnesses sign a written document confirming the same.
*Although an oral or nonverbal declaration is provided for in the statutes, it is strongly recommended that all Advance Directives, including Declarations and Revocations, be obtained and recorded in writing, when possible. It is imperative to properly update the Patient’s medical records, and procuring an Advance Directive in writing will ensure proper documentation. What is a “terminal and irreversible” condition? A terminal and irreversible condition is defined as a continual profound comatose state with no reasonable chance of recovery or a condition caused by injury, disease, or illness for which, within reasonable judgment, the administration of medical treatment or intervention would only prolong the dying process. What are “Life-Sustaining” procedures? A life-sustaining procedure is any medical procedure or treatment which only prolongs the dying process and does not cure or improve the terminal and irreversible condition. Some examples of life-sustaining procedures include the administration of cardio-pulmonary resuscitation (CPR), machines which perform the function of breathing for the patient (ventilators), and invasive administration of food and water. A “life-sustaining procedure” does not include any measure which is necessary to provide comfort care. Who can witness a Living Will? Any competent adult who is not related to the patient by blood or marriage and who would not be entitled to any portion of the patient’s estate may be a witness. When does a Living Will become effective? A living will becomes effective when the following three conditions are met:
1) The health care provider has a copy of the living will,
2) The patient’s physician and one other physician [two physicians total] have determined, after a personal examination by each physician, that the patient is no longer able to make his/her own decisions concerning medical treatment and health care, and
3) The patient’s physician and one other physician [two physicians total] have determined, after a personal examination by each physician that the patient is in a continual profound comatose state or has a terminal and irreversible condition. If a Patient has a Living Will, is he/she able to receive medication for pain? Yes. Pain medication is considered comfort care. Unless the patient specifically states in his/her living will that he/she does not want pain medication, then the physician can continue to provide pain medication as appropriate for comfort. Can a physician be held liable for following the patient’s instructions? The patient’s physician or health care providers cannot be held criminally or civilly liable for following the instructions of a patient’s living will, if it is in proper form, including the withholding or withdrawal of life-sustaining procedures. Does a living will have to be recorded? Louisiana law does not require that a living will be recorded. If a patient wishes to register his/her living will with the Secretary of State, he/she can send either a certified copy or the original living will to the following address:
Louisiana Secretary of State
P.O. Box 94125
Baton Rouge, LA 70804-9125
The attending physician or health care facility may directly contact the registry to determine the existence of any such declaration; however, it is not mandatory. Can a living will be revoked? Yes. A living will may be revoked at any time by the declarant. The living will may be revoked by destroying the original document or by preparing a written revocation expressing the wish to revoke the living will. This revocation should be signed and dated by the patient. The patient must make his/her health care providers and family members aware of the fact that he/she has revoked his/her living will.
The living will may also be revoked by an oral or nonverbal expression, and this revocation becomes effective upon communication to the attending physician. The attending physician is required to record in the patient’s medical records the time and date when the notification of revocation was received.
A living will registered with the Secretary of State may revoked by filing a written notice of revocation with the Secretary of State. The Secretary of State shall indicate on the declaration the date and time the notice of revocation was received. Until the notation has been indicated on the declaration, any physician or health care facility acting in good faith may rely upon the validity of the declaration.