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Advanced Directives and Incapacity: When Should a Person’s Wishes be Overridden?

Article by Holli K. Bott, Esq.

Burns White recently handled a matter in which a hospital sought to change a patient’s code from Full Code to DNR. The patient had been diagnosed with stage 4 cancer and on a ventilator for several weeks. Although there was no expectation of the patient recovering, the patient had executed an advanced directive that provided for continual life-sustaining care. It was a difficult situation for everyone involved, and it raised an important question that remains to be addressed fully by the courts:

When, if ever, should a person’s final wishes be overridden?

The Role of Advanced Directives in Estate Planning and Modern Healthcare
Advanced directives serve a critical planning function for individuals, families and healthcare providers. By affording individuals the ability to make decisions about their healthcare in advance, should they become unable to make these decisions or communicate their wishes in the future, they provide much-needed certainty and peace of mind. They also provide a measure of protection for healthcare providers who might be confronted by family members who have differing opinions about what is best for a loved one.

Advanced directives have been a staple of estate planning practice for decades. As long as they are carefully drafted (most states now provide forms that individuals can use) and executed prior to incapacity, they will generally be enforced. In modern medical practice, healthcare providers know to ask whether patients have advanced directives, and they will generally follow these directives over competing interests as required by state law.

Should it Ever Be Possible to Override an Incapacitated Patient’s Advanced Directive?
In certain circumstances, following a patient’s advanced directive may not only be fruitless from a medical perspective, but it may also be extraordinarily costly for the patient’s family. Providing around-the-clock care for a patient who will never recover also means that there is one less bed available to treat patients who have a chance of recovery. This scenario raises several difficult and important questions, including:

  • Should it ever be possible for family members, healthcare providers or the courts to override a patient’s advanced directive? If so, when?
  • If advanced directives can be overridden, how will this affect the planning process? Should there be a way for individuals to limit the circumstances under which their final wishes can be ignored?
  • What factors are most important when it comes to making decisions about an incapacitated patient’s healthcare—the patient’s wishes, the family’s financial constraints, other patients’ access to care, other factors?

In many respects, these are not so much legal questions as they are questions of public policy. Certainly, opening the door to override patients’ advanced directives would lead to litigation, but the more fundamental issue is that these questions arise under extraordinarily complex circumstances that have life-altering and deeply personal implications for everyone involved. While it may seem surprising that the courts have not yet provided clear guidance, a deeper examination of the issue reveals that the judicial system might not be the right venue for seeking a resolution.

In a recent Pennsylvania Superior Court case, In Re Border, 68 A.3d (Pa. Super. 2013), the Superior Court agreed that the lower court did not have authority to revoke the Decedent’s advanced directive after a guardian was appointed. (Id.) In this case, the question arose: Did Decedent’s checking of “yes” to life-sustaining measures under various dismal situations reflect a well thought out and considered choice, or was his decision a misunderstood hasty check of a box? Further, the Superior Court does not discuss whether a guardian can revoke a principal’s (Decedent’s) power of attorney, nor does any statute.

Similarly, Burns White handled a matter where our client, the Hospital, sought to appoint a guardian for an incapacitated person so that the Court could change the patient’s code status to DNR. Before the matter was presented to the Court, the Judge expressed serious concerns about changing the DNR, essentially stating that a person’s advanced directive survives his or her incapacity.

Conclusion
Many challenges and questions exist for those attempting to honor an incapacitated person’s advanced directive where there are no signs of recovery. The take away from In Re Border is that those signing an advanced directive must clearly understand the questions and implications of their answers. If there are any questions or uncertainties, individuals should not hesitate to seek clarification and insight from medical and/or legal professionals.