December 28, 2010
Stephen J. Dunn
In 25 years of law practice I have done estate planning for hundreds of people. Every one of them has wanted a health care durable power of attorney. Such a document enables the client (“patient”) to name someone (“patient advocate”) to make medical decisions for the patient in the event the patient is unable to make them for himself. Those decisions include the decision to terminate or forgo medical care if, in the opinion of the patient’s attending physician, either of these conditions exists: (1) the patient is in a persistent vegetative state without hope of recovery; or (2) the patient is terminally ill and expected to die within six months, and medical treatment would only serve to artificially delay the patient’s death. A health care durable power of attorney also expresses the patient’s wish not to receive medical treatment if either condition persists.
Most health care durable powers of attorney name one or two back-up patient advocates in the event the prior-named patient advocate is unable to act. A health care durable power of attorney becomes part of the patient’s medical record.
A health care durable power of attorney empowers a patient to remain in control of his or her medical care and avoid the indignity and suffering that might otherwise obtain. When my mother was in her final illness, she shared a hospital room with a woman who had been lying in a vegetative state for years. The woman laid in bed all day long with an agape expression on her face. Unable to swallow, she was fed through a tube inserted into her stomach. One can certainly question the wisdom and compassion of such treatment. Taxpayers paying for it is beyond misguided.
A health care bill proposed by House Democrats in 2009 included a provision for Medicare reimbursement to doctors for end-of-life counseling, including the availability of a health care durable power of attorney. Such a provision evinces sound policy. Many seniors cannot afford to have an attorney counsel them about a health care durable power of attorney.
Nonetheless, House Minority Leader John Boehner, R-Ohio, whose judgment I normally revere, seized on the provision and urged that it would “start us down a treacherous path toward government-encouraged euthanasia.” Former Governor of Alaska Sarah Palin raised the spectre of “Obama’s death panels.” Such fearmongering lacks any basis in fact. No one is advocating euthanasia or “death panels.” The health care law enacted in March, 2010 omitted the end-of-life counseling provision.
Reimbursement for end-of-life counseling has recently returned, in the form of a Medicare regulation to take effect January 1, 2011. Once again we are hearing the term “death panels” recklessly cast about in the media. Hopefully such groundless sensationalism will not derail a regulation so clearly in the public interest.