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“Advance Directive” documents are forms designed to enforce the wishes of a patient for medical care in the event the patient is mentally or physically unable to make those decisions in the unforeseen future. These forms are used quite commonly as patients enter the “End of Life” stage but can be used for events occurring much earlier in life. Some of the most commonly used “Advance Directive” forms include a Healthcare Power of Attorney, Living Will, LaPOST Directive, and sometimes a General Power of Attorney. 

In Part I, we discussed that Advance Directive Documents may be used to enforce the wishes of a patient for medical care in the event a patient becomes mentally or physically unable to make those decisions in the unforeseen future. We also distinguished between the Healthcare Power of Attorney and the General Power of Attorney. In this installment, we will discuss the Living Will, LaPOST Directives, and who would be legally authorized to make medical decisions for a patient in the absence of any Advance Directive documents.

• Living Will- A Living Will is usually a short pronouncement by the patient regarding whether or not to discontinue life sustaining measures when they are incapacitated and unable to make the decision for themselves. This decision can also be granted to a representative via a Healthcare Power of Attorney. The Living Will is provided for by statute and only applies in the situation where the patient is in a “terminal or irreversible condition.” The Living Will can be enforced if the patient is in a comatose state, mentally incompetent, or otherwise incapable of communicating. As long as the patient can make their own decisions, the Living Will is irrelevant.
  
  Louisiana law provides that a Living Will should be signed in front of two competent witnesses; notarization is not required. A patient, if he or she is mentally competent, can also make an oral or nonverbal declaration of the same kind in the presence of two witnesses.
   
• LaPOST Directive - A Louisiana Physician Order for Scope of Treatment (LaPOST) may be used when the patient has a “life-limiting and irreversible condition(s)” and whose life expectancy is less than one year. It sets out the patient’s wishes in the event of the progression of an irreversible condition. The patient can specify actions to be taken in the event of persistent vegetative states, irreversible comas, consciousness without the ability to communicate, and near-death events. The patient can decline interventions such as artificial respiration, cardiopulmonary resuscitation, kidney dialysis, artificial nutrition, and medications.

Louisiana law requires that a LaPOST Directive be signed by the patient (or other properly designated representative) and their physician.

Finally, what does a healthcare provider do if a patient is unable to make medical decisions but has not completed an Advance Directive? Louisiana law delineates a hierarchy of classes of persons authorized to make medical decisions for an incapacitated patient, as follows:

1. The patient’s spouse not judicially separated
2. An adult child of the patient
3. Any parent, whether adult or minor, for his/her child
4. Any sibling of the patient
5. Any other of the patient’s ascendants or descendants
6. An adult friend of the patient^[1]

In the absence of any such person, the attending physician may make medical decisions after: 

1. Documenting in the chart the necessity of the medical decision to be made;
2. Documenting the steps taken to locate those able to give medical consent; and
3. Consulting another physician, preferably the patient’s primary care physician, to confirm the medical necessity of the decision. That consulting physician must examine the patient and document his findings prior to medical action being taken.

This process does not apply to those matters considered “emergencies.”

LAMMICO insureds wanting additional information regarding Advanced Directive documents may contact the Risk Management Department and Patient Safety Department at 504-841-5211.