In light of the continuing debate over health care reform, there is a renewed interest in the creation and enforceability of health care advance directives (“Advance Directives”). An Advance Directive is a document that either: (a) provides directions to a physician or health care provider regarding one’s wishes regarding the administration or termination of life-sustaining medical treatment following terminal illness where recovery is impossible or in the case of permanent unconsciousness (this document is also known as a “living will”); or (b) appoints a specified health care agent to make such health care decisions on behalf of the patient in such situations, or at any time when a patient is not able to make his or her own decisions (also known as a “durable power of attorney for health care”). In either situation, an adult individual has the authority to create explicit, legally enforceable directives which his or her health care providers are required to either comply with or transfer the patient to another health care provider who will comply with the directive. But who makes these decisions if you have not executed Advance Directives?

No Living Will

In Ohio, if a patient does not have a living will, in the event such patient is declared by a physician to be in a terminal condition or has been permanently unconscious for the preceding twelve (12) months, a “representative” of the patient may execute a written consent to withdraw life-sustaining treatment after a consultation with the attending physician. The “representatives” are selected based on the following priority of family members: (i) the patient’s guardians (if the patient is a minor); (ii) spouse; (iii) adult children; (iv) parents; (v) siblings, or (vi) the nearest blood relative available within a reasonable time. If one of these representatives is not able to be located within a reasonable time, then an attending physician may determine whether lifesustaining treatment should be continued. While representatives and physicians are requested to comply with what the patient would have requested if he or she could communicate, and there is a legal process by which a family member may contest the determination of the representatives or the physician, ultimately, absent an living will, a patient’s wishes regarding end-of-life care may not be respected or even known.

No Durable Power of Attorney for Health Care

This uncertainty is even more pronounced in medical care situations that do not involve terminal or permanently unconscious patients. Absent a durable power of attorney for health care naming a specific attorney in fact to make health care decisions for a patient, Ohio law merely directs that the consent of a patient’s “natural or court-appointed guardian” be obtained. If there is no guardian, because the patient is an adult and was not incompetent, the decision regarding medical treatment may be made by the chief clinical officer of the hospital and the attending physician. However, unlike in end-of-life care situations, the law does not provide clear guidelines regarding the priority of family members in consent to such medical treatment. As such, a patient without a durable power of attorney for health care who suffers an accident or illness and therefore is unable to give informed written consent to medical treatment may have his or her medical decisions made by the hospital and not the family. Naming an attorney in fact to make medical decisions may not only be important for each of you, but it may also be important to consider for those of you who have adult children without families of their own.

As such, it is important that every person of sufficient age and competency at least consider creating Advance Directives to ensure that his or her wishes are carried out following a catastrophic illness or injury, and to guarantee that those persons a patient would want directing his or her medical and end-of-life care be included in the decision-making process.

This Client Alert is a summary only, prepared for general informational purposes, and is not an exhaustive description of the law relating to health care advance directives. Nothing in this letter is intended or is to constitute a legal opinion or legal advice on the part of Meyers, Roman, Friedberg & Lewis.

If you would like to discuss creating an Advance Directive, or for a fuller description of the Advance Directive process, please contact us at 216-831-0042.