Christopher Stoneman Estate Planning Articles

VIII - Advance Directives for Healthcare

 Few would deny that, whatever else it may have done, the recent turmoil concerning the late Theresa Schiavo and the question whether her life-support measures should be continued or withdrawn have certainly focused attention on the need for health care planning.  Like many other states, Vermont has passed a detailed - perhaps too detailed - statute dealing with this topic, Chapter 231 of Title 18 of Vermont Statutes Annotated, setting out procedures to be followed by the individual (the “principal”) who wishes to delegate to another individual (the “agent”) the authority to make health care decisions on the principal’s behalf.*  In this article we will attempt a summary of the Vermont law.

     Discussion will be under the following heads:
     1.  What is a healthcare decision?
     2.  What is an “advance directive” and when does it become effective?
     3.  Parties’ qualifications.
     4.  Mechanics of execution.
     5.  Amendment, suspension and revocation.
     6.  Authority and obligations of agents.
     7.  Authority and obligations of healthcare providers.
     8.  Immunity of participants.
     9.  Probate court review.
    10.  Health care forms - where obtained?

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*  As we saw in the preceding article, a POA under the “regular” Vermont power-of-attorney law, 14 V.S.A., chapter 123, may not include the delegation of health care decision-making powers.

                                                            
 1. What is a healthcare decision?     This is defined by Section 9701 (12) as “consent, refusal to consent, or withdrawal of consent to any health care.”  The term “health care” is very broadly defined:

               “[A]ny treatment, service, or procedure to maintain, diagnose, or treat an  individual’s physical or mental condition....” (9701(12)).

     2. What is an “advance directive” and when does it become effective?  An advance directive (9701(1)) is a written record, executed as provided in 9703 (see below), which may include a number of specified topics, including

       “appointment of an agent,* identification of a preferred primary care clinician,**instructions on health care desires or treatment goals..***”

Chapter 231 was added to the law in 2005, but the term “advance directive” also includes documents designated under prior laws as durable powers of attorney for health care or terminal care documents.****  

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*  An agent is “an adult (i.e., someone over the age of 18 years) with ‘capacity,’ to whom authority is delegated under an advance directive.” (9701(2)).
** The term “clinician” is not limited to licensed medical doctors but also includes osteopathic physicians, “advance practice registered nurses,” and certified physician’s assistants. (9701(5)).
***  Advance directives may also give instructions for anatomical gifts, disposition of remains and funeral goods and services.
**** “The absence of an advance directive or of any specific instruction in an advance directive shall have no effect on determining the principal’s intent or wishes regarding health care or any other matter.” This clause is presumably intended to negate any argument that the maxim “Expressio unius est exclusio alterius” (Mention of one thing implies the exclusion of another) should apply.

When does an advance directive become effective?  This is covered by 9706 which gives three situations in any one of which the advance directive takes effect:      

     (i) The principal’s clinician (a) determines, after speaking with an “interested individual.”* if one is reasonably available, that the principal lacks “capacity,” and then makes specific findings regarding the “cause, nature and projected duration of the principal’s lack of capacity” and  (b) has made reasonable efforts to notify the principal of that determination, and has also made reasonable efforts to notify the principal’s agent or guardian of the determination; or

     (ii) the advance directive contains a circumstance or condition specified pursuant to 9702(a)(3) (which may be unrelated to the principal’s capacity) which makes the authority of the agent effective or ineffective and the circumstance or condition has been met;** or

     (iii) the advance directive provides that it is to become effective upon its execution. (9702(a)(4)).

*  An “interested individual” is the principal’s spouse, adult child, parent, adult sibling, adult grandchild, “reciprocal beneficiary,” “clergy person,” or any adult “who has exhibited special care and concern for the principal and who is personally familiar with the principal’s values.” (9701(17)).
**  Perhaps an example would be a clause which states that the directive is to become effective if the agent has returned from a year abroad, or that it is not to become effective unless the agent has been discharged from military service - and so forth

     3.  Parties’ qualifications.

     The principal.  To be able to execute an advance directive, an individual must have “capacity.”  So also must the agent whom the principal  appoints.  When it comes to appointing an agent, the principal’s capacity - the requisite  “ability to make and communicate a decision regarding the issue that needs to be decided” (9701)(4)) - is more specifically defined as having: 

“a basic understanding of what it means [(a)] to have another individual make health care decisions for oneself and of who would be an appropriate individual to make those decisions and [(b) the ability to] identify whom the principal wants to make health care decisions for the [principal].” (9701(4)(A)).      

     The agent.  The statute requires that a health care agent have “a basic understanding of the diagnosed condition and the benefits, risks, and alternatives to the proposed health care.” (9701(4)(B)). The agent must be an adult (9701(2)).  In addition, there are a number of statutory limitations on who may act as agent under an advance directive.

Thus, the agent may not be the principal’s “health care provider;”* nor (unless the agent is related to the principal by blood, marriage, civil union or adoption) may the agent be an “owner, operator, employee, agent or contractor” of a residential or health care facility in which the principal is residing at the time of execution of the advance directive. (9702(c)).

*  Any person licensed, certified or authorized to provide “professional health care service to the principal during the principal’s medical care, treatment or confinement.”

     4.  Mechanics of execution.  Section 9703 deals with the execution of advance directives. 

     Witnesses.  The advance directive must be dated and signed (whether by the principal or, if he is physically incapable of signing, by another person in his presence and by his express direction) in the presence of two or more adult witnesses who must affirm that the principal appeared to understand the nature of the document and appeared to be free from duress or undue influence at the time of signing.  The witnesses may not include:
the agent, the principal’s spouse (who may, however, act as agent), a reciprocal beneficiary”* of the principal, or a parent, sibling, child or grandchild of the principal.

     Principal’s status at time of  execution.  Section 9703(c) and (d) impose certain restrictions in this regard:

     If at the time of execution of the advance directive the principal is being admitted to, or is already a resident of, a nursing home or a residential care facility, the directive will not be effective unless a statement has been signed by one of the following individuals that he or she “has explained the nature and effect of the advance directive to the principal”:

     - an “ombudsman;”**

     - a “recognized” member of the clergy;***

     - an attorney licensed to practice in Vermont; or

     - an individual designated by a probate court.

But if the principal is being admitted to, or is already a patient in, a hospital, the cast of characters qualified to explain the advance directive is enlarged by the addition of an individual who has been designated under 9709(c).****

* Defined as a person who has established a “reciprocal beneficiaries relationship” pursuant to 15 V.S.A. Section 1304, added to Vermont law in 1999 as a part of the Civil Unions law.
** An “ombudsman” is an individual appointed as a long-term care ombudsman under the program contracted through the Vermont Department of Aging and Disabilities pursuant to 12 U.S.C. Sections 3001 et seq. (the federal Older Americans Act of 1965, as amended).
*** Just what makes a clergy group “recognized” for purposes of the statute is not clear.
****  “Every hospital shall designate an adequate number of individuals to explain the nature and effect of an advance directive to [its] patients.”

     5. Amendment, suspension and revocation.

     Section 9704 covers this area.Generally speaking, a principal with capacity may amend, suspend or revoke an advance directive in whole or in part by executing a new advance directive. (9704(a)(1)).

A principal with or without capacity may suspend or revoke an advance directive in whole or in part by (a) signing a statement to that effect (b) by personally informing his clinician or (c) by burning, tearing or obliterating the advance directive, either personally or by someone else in his presence and at his direction. (9704(b)(1)). Generally speaking,a principal with or without capacity may suspend or revoke any provision of an advance directive other than the designation of an agent, orally, in writing or by any other act evidencing the requisite intent. (9704(b)(2)).

     The statute contains a number of safeguards designed to ensure that a principal’s actions are known by all concerned.

     Section 9707(h) advance directive. An advance directive executed in accordance with Section 9703 (see above) may contain a provision permitting the agent, in the event that the principal lacks capacity, to authorize or withhold health care over the principal’s objection.  The detailed criteria that must be satisfied before this may happen are set out in 9707(h)(1 and (2).

     6.  Authority and obligations of agents.

     A duly appointed health care agent has the authority to make any health care decisions on the principal’s behalf that the principal could make if the principal had the requisite capacity. (9711(a)).

     Decision-making criteria. After this broad statement, the statute then lists criteria which the agent must consider in reaching his health care decision.
               “[After due consideration]* the agent shall make health care decisions by attempting to determine what the principal would have wanted under the circumstances.”

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*  With the principal, to the extent possible, and the principal’s clinician and any other appropriate health care providers and any individuals identified in the advance directive as those with whom the agent should consult.
              
and shall consider the following (9701(d)(1)):

                (a) the principal’s specific instructions;

                (b) the principal’s wishes* expressed to the agent, to the principal’s guardian or to his health care provider, whether since or prior to execution of the advance directive; or**

                (c) the agent’s knowledge of the principal’s values or religious or moral beliefs.

  * Not necessarily written.
** “And” would seem a more appropriate conjunction.   

   Inability to determine principal’s wishes. If the agent is unable to make this determination, his assessment shall be based on what he assesses as the principal’s “best interests,” but he may not authorize the provision or withholding of health care “on the basis of the principal’s economic status or pre-existing mental or physical disability.” (9711(d)(2)).  The agent is not to consider his own “interests, wishes, values or beliefs” (9701(d)(3)).  If he is unable or unwilling to make a health care decision for the principal in compliance with 9701(d), he is to recuse himself with respect to the decision or resign from being the agent and notify all the parties involved (9701(d)(4)).

     7. Authority and obligations of healthcare providers.

     These are covered at length in Sections 9707, 9708 and 9709.  Section 9707 deals with the duty of health care providers to ascertain, “except on an emergency basis [sic],” whether a patient has an advance directive and prescribes rules for proceeding from that point on.  Section 9708 is concerned with do-not-resuscitate (“DNR”) orders.  Section 9709 covers protocols and nondiscrimination.

     8. Immunity of participants.  
 
     Section 9713 gives immunity from criminal or civil liability:

     - to an agent or guardian who has made a decision in good faith pursuant to an advance directive and the provisions of the Vermont statute (9713(a)); and

     - to a health care provider, health care facility, residential care facility who or which (a) has either complied with the statute for providing or withholding health care or services in good faith pursuant to an advance directive, a DNR identification of the principal, the consent of a principal with capacity or of the principal’s agent or guardian, or a decision or objection of a principal; or (b) has relied in good faith on a suspended or revoked advance directive (9713(b)).  But the statute is not to be construed as establishing immunity “for the failure to follow standards of professional conduct and to exercise due care in the provision of services. (9713)(b)(3)).

     9.  Probate court review.  The probate court has overall supervisory jurisdiction, in the sense that it may be petitioned, under Section 9718, for a wide variety of forms of relief, including revocation of an advance directive on the grounds that the principal lacked capacity or was under duress, fraud or undue influence.

     10.  Health care directive forms.  These may be obtained, without charge, from Vermont Protection & Advocacy, Inc., 141 Main Street, Montpelier, VT  05602 (www.vtpa.org).  New Hampshire forms may be obtained at www.caringinfo.org.

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