Advance Directives in Health Law & DNR’s

People spend much money and time planning for estate and health needs. It need not be expensive or mired in delay. Examples of estate planning for your health care needs, include easy-to-execute standard forms. These are as follows:

1. Advance Directive, 63 O.S. § 3101.4;
2. Advance Directive for Mental Health Care, 43A O.S. § 11-106; and
3. Do Not Resuscitate Order (“DNR”).

The Advance Directive for Mental Health Care is a statutorily mandated form physicians must keep in your file. It will inform medical personnel about who is able to make health care decisions when you cannot. It also describes situations which you may prefer to keep or withhold life sustaining procedures or hydration and nutrition. A person may even write into their form other personal preferences. What is extraordinarily important is the medical decision you make. To properly make the decision best for you, you should educate yourself about the medical ramifications of the options and scenarios described in these forms. The legal ramifications are clear, however understanding the effect on you, your body, your life and those of others is something for special contemplation and investigation by you. By all means, always educate yourself about your medical decision making.

Even without an Advance Directive in effect, your State may have a law in effect that states whether a spouse, parent or child can make decisions for you if you are unable. After conducting comprehensive research on each state\’s laws on surrogate decision-making, Ms. Cinocca\’s December 26, 2008 article in favor of a Family Surrogate Decision Making Statute in Oklahoma was published. This article addresses how medical providers chose who may make decisions for an incapacitated person when no advance directive is in place. You may view the article by clicking on the link below for some history on the subject:

Cinocca, Tracy. “The Need for a Family Decision Making Statute in Oklahoma.” Oklahoma Bar Journal. Vol. 69, No. 48, 12/26/98.

As a practical matter, health care providers defer to the decisions of a patient\’s spouse, children and/or parents, and in the event of serious discord, seek the appointment of a guardian or DHS intervention to assist with health care. Such matters are typically litigated in the probate courts in Oklahoma.

On June 24, 2005, Ms. Cinocca attended a conference by the Philadelphia Bar Institute on End of Life Decision Making. Experts agree that if only more people would execute advance directives and discuss end of life decision-making, then their families and friends would be much better prepared to handle their loss. It is far more difficult for family members to disagree on end of life decisions for you, if they all know your desires. In addition to the advance directives based on the statutorily prescribed link below, you should familiarize yourself and loved ones with the following:

Advance Directives, Healthcare Powers of Attorney and Durable Powers of Attorney are different types of documents that can assist you with designating another individual to make health care decisions for you. These are especially helpful if you want a person not typically allowed to make decisions for you such as a spouse, parent or child to do so. The Advance Directive is also referred to as a “Living Will.” It must be executed by an individual of sound mind and eighteen (18) years of age or older. It allows for withholding, or withdrawing life-sustaining treatment. There must be two disinterested witnesses over the age of eighteen.  The designated health care proxy can make treatment decisions, even involving end of life, as long as the patient qualifies and a physician so certifies. An advance directive may be in substantially the following form: Advance Directive

An Advance Directive for Health Care includes what many refer to as a “living will” (otherwise known as advanced directive, mental health care advanced directive, or durable power of attorney) and other provisions regarding end of life issues. The law assumes that you want to be kept alive, unless there is evidence that you do not wish to be given life support or tube feeding. An advance directive allows you to: (1) chose to refuse or discontinue life support, artificial food and hydration (tube feeding) or other medical treatment (you will receive pain medication, unless you refuse it in the directive); (2) designate someone as your health care proxy to make these decisions on your behalf; (3) donate organs. Family members can NOT make these decisions for you. The attending physician must believe that it is YOUR wish to refuse or discontinue life sustaining treatment. A properly executed Advance Directive or other document including the “living will” language, will inform your doctor of your wishes. You can revoke the directive at any time.

A more often overlooked Advance Directive but very important one allowed under a statutory form authorized under Oklahoma Law is for mental health care. This is especially important to an aging population suffering from dementia, Altzheimer’s and a host of other mental maladies. The decisions shall be consistent with any wishes or instructions the declarant has expressed in the declaration. If the wishes or instructions of the declarant are not expressed, the attorney-in-fact shall act in what the attorney-in-fact believes to be in the best interest of the declarant. The attorney-in-fact may consent to inpatient mental health treatment on behalf of the declarant if so authorized in the advance directive for mental health treatment. An advance directive for mental health treatment shall be notarized and shall be in substantially the following form: Mental Health Advance Directive 

There are advance directive forms for both mental health and general health care, both of which can be found by following the respective links.

Do Not Resuscitate form (DNR)

A DNR instructs health care providers NOT to perform CPR on you. YOU WILL NOT RECEIVE CPR AT ANY TIME after you sign a DNR form, even if you are otherwise healthy. If you execute a DNR because you have a terminal condition, you will NOT receive CPR when your heart stops or for other reasons either (ie. heart attack, choking, drowning, car accident, etc.). A doctor or health care proxy may execute a DNR form for you after you have become incapacitated (unable to make your own decisions). You should consult your physician and attorney prior to executing a DNR, because it MAY RESULT IN DEATH. You may find a Do Not Resuscitate form here.

About the Author:

Ms. Cinocca graduated from the University of Tulsa certified in Health Law. As a former chairman of the Oklahoma Health Law Committee, Ms. Cinocca conferred with many nursing home administrators and families about patients on end-of-life decision making issues. She previously engaged in many public speaking engagements, for families of patients suffering from Alzheimer\’s Disease, dementia, or otherwise in assisted living. She provides forms mandated in a prescribed statutory form on her website here for your use.

Public Service & Speaking Engagements

As part of Ms. Cinocca’s public service goal to educate the public and foster more citizens of the State of Oklahoma to execute advance directives, the statutorily approved and mandated forms are available. Depending on your personal needs and desires and whether or not you are aware of any medical condition which may cause your future incapacitation or not, you may need to consult with an attorney and your physician.

Should you desire to engage Ms. Cinocca to speak to your group about the legal aspects of end of life decision making please Contact her. Though one can never fully be prepared for the loss of a loved one, preparation can help you to deal with loss and others to eventually deal with yours.  Please Contact us if we can be of assistance to you.