By Martin J. Hagan
People are living longer, and with longevity comes the risk of dementia that as it progresses will render its victims incapable of making their own health care decisions. Alzheimer’s disease is estimated to be the cause of at least half of all dementia cases.
The progression of Alzheimer’s disease from mild to severe stages is irreversible, at least with present treatment options. The only realistic hope is to slow and perhaps stop the progression of the disease, but not to cure it or reverse its effects.
When discussing health care decision-making concerns with individuals who are exhibiting signs of Alzheimer’s disease, the first response should be to assure them that they can continue making their own treatment decisions for as long as they are able.
But since the progressive nature of Alzheimer’s disease makes their ongoing ability to make such decisions unpredictable, it is also essential they have legally effective documents that will keep their voice alive regarding their medical treatment choices, and appoint persons of their own choosing to be their advocates.
Designing the Living Will for an Alzheimer’s Patient
Pennsylvania law uses the terms “end-stage medical condition” and “permanently unconscious” as the conditions that will trigger the Living Will, in which the person directs that all life-sustaining treatment be withheld or withdrawn.
Is Alzheimer’s Disease an “End-Stage Medical Condition”?
End-stage medical condition is defined as an incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness that will result in death, despite the introduction or continuation of medical treatment.
The statute goes on to state that, except as specifically set forth in an advance health care directive, the term “end-stage medical condition” is not intended to preclude treatment of a mental, cognitive or intellectual condition if the patient would benefit from the treatment.
The clear import of the statute is that the term “end-stage medical condition,” if used in a Living Will without further description, will likely exclude Alzheimer’s disease as a condition that could cause the Living Will to be applicable. It would not be difficult to show that the patient could both benefit from simple palliative care and that some form of medical treatment would not merely prolong the dying process.
In addition to the statute, the Pennsylvania Medical Society’s position is that advanced Alzheimer’s does qualify as an end-stage medical condition and the patient’s physician may follow the directions of a health care representative to withhold or withdraw life-preserving care when the patient has advanced Alzheimer’s.
In sum, if an individual would like a diagnosis of advanced-stage Alzheimer’s disease to trigger their Living Will, they must specifically state that intention in the Living Will to avoid the limitations of the statute. They could also add any other conditions, such as requiring the condition be of a severe nature, that they think necessary to fully express their intentions.
Designing the Health Care Durable Power of Attorney for an Alzheimer’s Patient
A health care agent will generally have the authority to make any health care decision the principal could have made and exercised, subject to any limitations he or she sets forth in the power of attorney instrument or as may be found in the statute.
In addition to any direction expressed in the Living Will, the patient can state in the power of attorney how the agent should respond to a diagnosis of Alzheimer’s disease or some other irreversible and incurable condition. The agent and the doctors can be directed to forgo any further treatment that would be of an aggressive nature, and to treat any subsequent life-threatening illness or disease in the same manner as an end-stage medical condition as defined in the Living Will.
Discussing end-of-life planning is never easy, and the conversation can become even more difficult when a loved one is diagnosed with Alzheimer’s disease. Be sure to review all health care planning options with your loved one as soon as possible. Also, remember to consult with your attorney about the specific language you want to be included in your Living Will and Health Care Durable Power of Attorney, including any specific limitations or conditions you want placed on your agent’s authority.
Martin J. Hagan is a partner at Meyer, Unkovic & Scott. He has been serving clients in the areas of estate planning and administration, estate and gift taxation, special needs trusts, elder law, and estate and trust litigation for over 35 years. Martin can be reached at MJH@MUSLAW.com