Articles

End-of-life Decision Planning

IN MAINE, YOU CAN MAKE YOUR OWN END-OF-LIFE DECISIONS, FROM MEDICAL CARE TO DISPOSITION OF REMAINS

HERE’S HOW:

In Maine, you are in charge of your medical and end-of-life decisions. By planning ahead and making your wishes known through medical care directives, you can provide for your own peace of mind, and help your loved ones know what to do, in the event of your illness or injury. Such planning can avoid hasty decisions being made with inadequate information, and can avoid family disputes about your proper care and your preferences.

Maine law gives you the legal right to accept or reject medical care. You can not only refuse medical treatment, but also intrusive and invasive nutrition and hydration. You have the right to direct your medical care and treatment in detail and to the end, under a statute enacted by the Maine Legislature called the Uniform Health Care Decisions Act (Title 18-A M.R.S.A. Sections 5-801 to 5-818). Under the statute, your health care instructions are paramount: You can define the scope of health care instructions as broadly or narrowly as you choose. You can also designate someone else to be your health care agent to direct your medical care if you cannot make medical decisions on your own.

Below are typical kinds of medical care and end-of-life directives you can make:

HEALTH CARE DIRECTIVES AND DESIGNATING A HEALTH CARE “AGENT”

  • Health Care Agent. You can appoint a health care agent to make decisions on your behalf when you are incapacitated, or issue a health care directive either orally or in writing. A written health care power of attorney or advance directive will normally be preferable to properly demonstrate your wishes. A health care power of attorney or advance directive must be in writing and signed by you and two witnesses. The Maine Health Care Decisions Act suggests a form of written directive for you to use. This form is generally available at hospitals and health care agencies and can be found on line. It is only a suggested form and you are free to draft your own.
  • “Surrogates”.Maine’s statute also establishes a priority list of “surrogates” who can make decisions for you if you become incapacitated but have not appointed a health care agent or given a health care directive. A surrogate may make health care decisions for you if your primary physician finds that you lack capacity and no agent or legal guardian has been appointed or is reasonably available, and you are in a terminal condition or persistent vegetative state. A surrogate may make other health care decisions for you when you are not in a terminal condition or persistent vegetative state, but may not deny surgery or medical procedures which are lifesaving and medically necessary.Section 5-805 of the statute establishes a priority for appointment of a surrogate:(1) spouse (unless legally separated); (2) adult who shares an emotional, physical and financial relationship with you similar to a spouse; (3) an adult child; (4) a parent; (5) a sibling; (6) an adult grandchild; (7) an adult niece or nephew related by blood or adoption; (8) an adult aunt or uncle related by blood or adoption; (9) another adult relative, related by blood or adoption, who is familiar with your values and is available for consultation; and (10) an adult who has exhibited special concern for you, who is familiar with your values, and who is reasonably available.A person who chooses to serve as a surrogate decision maker must notify the health care providers and family members.

    In all cases, the surrogate is to make decisions in accordance with your directions and instructions to the extent known, and in good faith and in your best interests.

    Where more than one member of a priority group is available and willing to serve and the members cannot agree on a health care decision, the law provides a means for resolving disputes, which may include referring the dispute to a neutral third party or the Probate Court.

  • Recording Availability of Your Directive. Section 5-807 of the Maine Health Care Decisions statute states how health care decision providers are to comply with your health care instructions. They must verify the medical decision with you, and promptly record your health care records information about the existence or revocation of a health care directive or the designation of a surrogate or your capacity or lack thereof. They must also comply with your instructions or the instructions of your authorized agent or surrogate. The statute explains how to resolve a health care provider’s dispute with a directive for reasons of conscience or otherwise.Section 5-808 makes clear that a health care agent or surrogate has a right to your health care information.
  • Duty to Comply With Your Directive. Section 5-809 of the statute provides protections and immunities for health care agents, surrogates and health care providers or institutions who act in good faith to carry out your directions.To assure that your wishes are honored, the statute provides for damages awards against health care providers or institutions that intentionally violate the statute’s requirements and also against any person who falsifies, forges, conceals, defaces or obliterates your medical directive or revocation or who coerces or fraudulently induces you to give, not give, or revoke a health care directive.

Do Not Resuscitate Orders.

A “Do Not Resuscitate” Order is a direction given by a physician who authorizes first responders or other medical personnel to refrain from administering emergency treatment to resuscitate you. These types of orders are often appropriate for patients in a terminal or vegetative state.

  • Anatomical Gift Instructions.In 2009, the Maine Legislature enacted the Revised Uniform Anatomical Gift Act. This law allows you to make an anatomical gift (i.e., an organ donation) if you are 18 years or age or older, an emancipated minor, a minor over the age of 16 authorized to apply for a driver’s license, the parent of an unemancipated minor, an agent acting under power of attorney (unless the power of attorney provides that the agent does not have this power), or the donor’s guardian. The gift may be made by a provision in your will, in which event the gift is effective upon death regardless of whether the will is offered for probate or declared invalid. You can also provide for the gift by a separate document, but it must be signed by you as the donor (or by someone else at your direction and in your presence), and in the presence of two witnesses who must sign the document in your presence. The gift may also be made by a statement on your driver’s license or donor card. The law also provides for you to modify or revoke the anatomical gift and even to expressly elect not to make an anatomical gift.The law also provides for the making of anatomical gifts after death. Gifts of a decedent’s body or organs may be authorized by (1) an agent appointed under a power of attorney; (2) a spouse; (3) a registered domestic partner; (4) adult child; (5) a parent; (6) an adult sibling; (7) an adult grandchild; (8) a grandparent; (9) an adult who exhibited special concern; and (10) the former guardian of the decedent. Where more than one person is eligible, but there is disagreement over a gift, the law establishes procedures for dispute resolution.The law states who is eligible to receive an anatomical gift, such as hospitals, medical and dental schools, colleges, universities, organ procurement organizations, eye or tissue banks, and appropriate research organizations.The law also defines the rights and duties of a recipient with clear rules for the use of organs and body parts when no specific purpose is specified.
  • Disposition of Remains Instruction. Issues sometimes arise over who is entitled to custody of the remains of a deceased person. In Maine, this issue is addressed by a Maine statute in Title 22 M.R.S.A Section 2843-A. The person with first priority to take custody of remains is the person you have already designated in writing. Otherwise, the priority is (1) surviving spouse (unless estranged); (2) domestic partner; (3) adult children; (4) parents; (5) adult siblings; (6) adult grandchildren; (7) adult nieces and nephews; (8) maternal grandparents; (9) paternal grandparents; (10) aunts and unless; (11) adult first cousins; and (12) other adult relatives by order of descent. If more than one person is eligible and disputes arise, the Probate Court may appoint a suitable person and may make decisions if those persons who are entitled to custody cannot agree.
  • Funeral Instructions. You have a right under Maine law to specify in writing what funeral arrangements you want, which are binding on the next of kin if you have adequate funds set aside in a proposed burial plan or other funding agreement. The procedures are set forth in 22 M.R.S.A. Section 2843-A(5). Some people also provide for burial instructions in their Wills, and the Probate Code expressly authorizes the person designated as Personal Representative to carry out such instructions. Insofar as the Will may not be filed for probate for several days after death, the use of a separate written instruction is more desirable.

Planning Ahead Will Help You and Others.

If you need legal assistance in preparing any of the documents discussed here, including Health Care Instructions, Health Care Power of Attorney, Appointment of Health Care Agent, and End of Life Directives, you can refer to my Phil Hunt webpage at hold.perkinsthompson.com for more information about me. I would be happy to assist you with this, or with any other estate planning or elder law matter. I can be reached at (207) 774-2635 or phunt@perkinsthompson.com for more information.