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POLST and Advance Directives: You Need Both!

In December 2011, New Jersey Governor Chris Christie signed legislation that enables patients to indicate their wishes regarding life-sustaining treatment through the practitioner/physician orders for life-sustaining treatment (POLST) form. POLST is a medical order that is completed by a physician or an advance nurse practitioner (APN) and is intended for patients with life-limiting illnesses. The advance planning tool POLST should be established and utilized complementary to, not in place of, advance directives.

Under New Jersey’s basic advance directive form, there are two components: a proxy directive (a durable power of attorney for health care) and an instructive directive (a living will). As mentioned in a previous article, advance directives allow an individual to plan and communicate their end-of-life decisions in the event that he or she loses the capacity to do so. All adults should have an advance directive as it allows the appointment of a surrogate to speak on the behalf of the individual when he or she is unable to do so.

An advance directive does not provide medical orders, but rather provides an idea of treatments one wishes to have in medical emergencies in which they cannot communicate. When someone is incapacitated, the health care system will review the advance directive and communicate with the appointed surrogate to develop a treatment plan. Without an advance directive, and depending on what state one resides in, there may not be anyone who can be put in place to make medical decisions on behalf of the incapacitated individual, or it may be unclear who that individual is.

A POLST is mainly applicable to those who are very elderly or are suffering from a terminal illness. The threshold to determine if a patient qualifies to complete a POLST is if, according to the medical team, there is a likely chance that the patient would pass away within one year. Once a POLST is completed, it becomes part of a patient’s medical records, following the patient through multiple health care settings, including hospitals, nursing homes and hospice.

There are several issues that arose with the implementation of advance directive statutes, one being that advance directives are often drafted at the time when someone establishes their estate plan. These important legal documents are often secretly tucked away from public eyes, thereby negating the goal of communicating end-of-life decisions directly with an appointed surrogate. The advance directive also only comes into play if and when the individual becomes incapacitated. If the advance directive does not specify that a conversation needs to be held between the individual and their appointed surrogate upon the document’s completion, then there is a risk that the appointee will not act in accordance with the person’s true preference.

An unforeseen conflict may also arise when medical practitioners are asked to interpret the lengthy legal documents they might not be prepared or have time to review carefully. Additionally, estate planning attorneys often draft legal documents thoroughly, whereas medical professionals prefer that the instructive directive be a simple statement of one’s basic philosophy about life-sustaining interventions and the use of technological advances. Medical professionals advocate that the critical component to advance directives is the appointment of the surrogate, or spokesperson. This individual will work closely with the doctors and nurses to determine what is in the best interest of the individual.

POLST was created to address many of these issues. In the instance when death is a likely reality, not just an eventual event, POLST shifts the burden from the attorney to the medical practitioner. In end-of-life circumstances, the health care professional is in the best position to address the consideration of life-sustaining treatment, ineffective interventions, and quality-of-life assessments. POLST acts as a consolidated set of medical guidelines that are the result of a conversation between the patient, who has a life-limiting condition, and the physician or APN. It specifically addresses medical treatments, artificial fluid, airway management, and cardiopulmonary resuscitation. The form can be transported and is honored across all care facilities.

In the New Jersey POLST form, there is a surrogacy provision that calls for the appointment of a health care decision maker in the event the patient becomes incapacitated. A provision to specify anatomical gifts is included as well. The POLST must be signed by both the patient or the designated proxy and the physician or APN who has participated in the discussion. Once signed, the document is operational.

As mentioned previously, POLST is neither an advance directive nor a replacement for these legal documents. However, both POLST and advance directives are advance caring documents that are helpful in communicating a patient’s wishes when used appropriately. It is important that, when an individual considers putting together advance directives, he or she consults an experienced New Jersey estate planning attorney who can assist you with the drafting, adoption and execution of these legal documents and will help to ensure that all necessary information is included.

The New Jersey estate planning attorneys at Hunziker, Jones and Sweeney, P.A. can provide assistance in putting your legal, financial, and medical affairs in order to avoid legal complications requiring court intervention. For more information or to schedule a consultation, call (973) 256-0456 or fill out our contact form.

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