Estates & Wills & Trusts

POA beats DNR tattoo across chest: Shinehoft

By Paula Kulig, AdvocateDaily.com Contributor

Communicating one’s wishes for end-of-life care is essential to ensure they’re honoured, but there’s still no guarantee that family members and doctors will be aware of a patient’s request, Toronto wills and estates lawyer Elinor Shinehoft tells AdvocateDaily.com.

“I think it’s a matter of stating your wishes in as many ways as possible, but unfortunately from a legal perspective, that may not be easy. And none of our systems are perfect or guaranteed or foolproof. But the more people you let know, the better your chances of having your wishes carried out,” says Shinehoft, principal of Shinehoft Law.

A 70-year-old man in Florida went a step further than most people and got the words “Do Not Resuscitate,” along with his initials, tattooed across the upper part of his chest, CTV News reports. But even then, doctors at a Miami hospital, where the unconscious man was an emergency room patient, still grappled with whether they should follow the DNR directive, according to the report.

The case, which was also reported in The New England Journal of Medicine, “certainly raises many really interesting questions. The patient wanted to make his wishes very clearly known in a much more non-traditional way, but I can understand the doctors’ concern. They have ethical issues,” Shinehoft says, adding that she hopes the case generates discussion.

“Was he in the right frame of mind and did he have the actual capacity to make that decision when he had the tattoo done? Was he sober at the time? Was it done in all earnestness or as a dare? Did he still have those wishes or was it going to be really expensive and time-consuming to have a tattoo like that removed?”

Communication problems can also arise when a patient has a power of attorney for personal care, which designates someone to make medical and end-of-life care decisions, Shinehoft says.

“Unless you carry a copy of your power of attorney with you everywhere you go, doctors will not know who you designated as your legal representative to act for you,” she says. “And even if you’re diligent enough to carry a copy with you, there’s the matter of actually being able to get in touch with the person if it’s a time-sensitive matter.”

Shinehoft also notes that in emergency situations, physicians must follow a directive stipulating that unless told otherwise, “their obligation is to try to save somebody’s life. They can’t take the chance of servicing or not servicing urgent life-or-death situations.”

A power of attorney works best in non-urgent situations where a patient faces ongoing treatment and there’s time to get appropriate instructions, such as administering chemotherapy or radiation, inserting a feeding tube or moving someone to a long-term-care facility, she says.

But the problems that can arise in emergency situations are not a good enough reason to avoid asking a lawyer to formalize your wishes, Shinehoft adds.

“If you’re comfortable giving someone the power to make decisions about your health and you discuss it with them, I still think it’s a good idea to have a power of attorney. It may not work 100 per cent of the time — such as in emergency situations — but if you can have something that will help 80 per cent of the time, would you rather have that comfort level or zero?”

Short of carrying around a power of attorney at all times, Shinehoft says, there are a few ways that might improve the chances of a patient’s wishes being made known, including a registry system set up by the government; a card that can be inserted in a wallet, much like an organ donor card; and simply informing your family doctor, so that the instructions can be passed on in the event of an emergency situation.

“It’s not a perfect system, but I think informing your family doctor is one of the better suggestions because they’ll put the information in your file and then maybe somehow it will get known,” she says.

In terms of the approach taken by the Florida patient, Shinehoft says she’s never seen end-of-life wishes communicated in such an unusual way.

“I can see people starting to make more creative decisions like this to be clear about their wishes, but then again, that’s going to open up even more dilemmas for doctors.”

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