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One important, non-financial component of estate planning is designating a person to make medical decisions on your behalf when you are unable to do so. In Oregon, the current method by which such a person is designated is through a document called an "advance directive." The advance directive, the form of which is currently governed by ORS 127.531, allows the person creating the advance directive (called the "principal") to both (1) designate a "health care representative" (i.e., the person responsible for directing the principal's health care when the principal is unable to do so) and (2) instruct the health care representative as to what medical care the principal wants or does not want in the event the principal is unable to make such a designation him- or herself. The advance directive is, currently, the only method by which a health care representative may be appointed, and Oregon law currently governs many elements, including definitional terms, related to the advance directive. Senate Bill 494 aims to change all that.
On January 9, 2017, Senate Bill 494 was introduced to the Oregon Senate. Senate Bill 494 (hereinafter "SB 494" or "Bill") is aimed at creating and amending certain provisions of the Oregon Revised Statutes ("ORS") that deal with the creation and form of the Advance Directive and the (proposed) Appointment of Health Care Representative.
To begin, SB 494 proposes to establish an Advance Directive Rules Adoption Committee (the "Committee"). The Committee will be charged with adopting the form of an advance directive to be used in the State of Oregon, which, at minimum, must include certain elements enumerated in the Bill (see below). The form adopted by the committee will be the only valid form of an advance directive until a new advance directive form is adopted by the Committee. To that end, the adopted form of advance directive must be reviewed by the Committee once every four years for the purpose of adopting "necessary" changes. SB494, §§ 2-3.
Of interest, SB 494 proposes a new form in the world of Oregon advance directives and health care representatives: The "Appointment of Health Care Representative and Alternate Health Care Representative" (hereinafter the "Appointment"). SB494, § 5. Unlike an advance directive, the Appointment from contains no option for the "principal" to give instructions to his or her appointed health care representative(s) governing the principal's "end of life" care - i.e., "tube feeding" and "life support." (See form Appointment of Health Care Representative and Alternate Health Care Representative). This suggests that the Appointment form gives the appointed health care representative(s) absolute authority, within the confines of ORS 97 and 127 (including any changes to those statutes caused by SB 494), to make health care decisions on the principal's behalf when the principal is unable to do so. That is to say, unless a health care representative receives instructions from the principal (either in writing or orally), and the principal's desires as to his or her health care are, therefore, known to the health care representative, the health care representative has only a (rather subjective) duty to act in a manner that the health care representative "in good faith" believes to be in the best interests of the principal. ORS 127.535(4). The problem? What the principal thinks is in his or her best interest may be very different from what the health care representative (who has received no instructions) thinks is in the principal's best interest.
That having been said, the way to avoid the aforementioned problem seems fairly simple: The principal must make his or her desires with respect to health care known to his or her health care representative(s) - either orally or in writing. But here we run into another quirk of SB 494. While § 3 of SB 494 expressly provides that "[t]he principal may attach supplementary material to an advance directive" and that "supplementary material attached to an advance directive under this subsection is a part of the advance directive," no like-language can be found in § 5, which sets forth the proposed Appointment form. SB 494 § 3, § 5 (emphasis added). This suggests that the legislature intends that supplementary material attached to an Appointment not be part of the Appointment. That is to say, the fact that the legislature has expressly allowed for supplementary material with respect to advance directives means that they have considered the effect of supplementary materials, and the omission of any reference to supplementary material with respect to Appointments (in light of the fact that the legislature has clearly considered such material) must be purposeful, meaning that the legislature intends that supplementary material attached to an Appointment not be considered part of that form. So, what exactly does this mean? If a person executes an Appointment and attaches a sheet of instructions concerning his or her health care preferences to it, how do we treat them - i.e., the instructions? According to SB 494, the instructions are not part of the Appointment. If that is so, is the health care representative to honor them? Fortunately, all signs point to yes. Even as amended by SB 494 (proposed), ORS 127.535 provides that "[i]n making health care decisions, a health care representative has a duty to act consistently with the desires of the principal as expressed in the principal’s advance directive, or as otherwise made known by the principal to the health care representative." ORS 127.535(4) (as amended by proposed SB 494). As such, the written instructions (whether physically attached to the Appointment or not), even though not considered by SB 494 to be part of the Appointment, have been "made know by the principal," and the health care representative must honor them. (Under ORS 127.535(4), oral instructions will do the trick as well). My point? SB 494 could be better drafted: (1) it could make the rules with respect to advance directives and Appointments uniform, allowing supplementary material with respect to both (avoiding any confusion over the effect of supplementary material attached to an Appointment), or (2) it could better clarify what authority a health care representative has when an Appointment is executed (instead relying on default provisions), or (3) it could do both.
With respect to advance directives, under SB 494, the advance directive form (to be adopted by the Committee) must contain the following elements:
- A statement about the purposes of the advance directive, including:
- A statement about the purpose of the advance directive - to appointing a health care representative to make health care decisions for the principal when the principal is unable to do so;
- A statement that the advance directive allows the principal to express his or her values and beliefs with respect to health care decisions and the principal’s preferences for health care;
- A statement about the principal’s ability to express his or her preferences with respect to placement in a care home or a mental health facility; and
- A statement that advises the principal that the advance directive is not a medical
order.
- A statement explaining that to be effective the advance directive must be (1) accepted by signature or other applicable means, and (2) either witnessed and signed by at least two adults or notarized.
- A statement explaining that, to be effective, the appointment of a health care representative or an alternate health care representative must be accepted by the health care representative or the alternate health care representative.
- A statement explaining that the advance directive, once executed, supersedes any previously executed advance directive.
- The name, date of birth, address, and other contact information of the principal.
- The name, address, and other contact information of any health care representative or any alternate health care representative appointed by the principal.
- A section providing the principal with an opportunity to state the principal’s values and beliefs with respect to health care decisions, including the opportunity to describe the principal’s preferences, by completing a checklist, by providing instruction through narrative or other means, or by any combination of methods used to describe the principal’s preferences, regarding:
- When the principal wants all reasonably available health care necessary to preserve life and recover;
- When the principal wants all reasonably available health care necessary to treat chronic conditions;
- When the principal wants to specifically limit health care necessary to preserve life and recover, including artificially administered nutrition and hydration, cardiopulmonary resuscitation and transport to a hospital; and
- When the principal desires comfort care instead of health care necessary to preserve life.
- A section where the principal and the witnesses or notary may accept by signature, or other means, including electronic or verbal means, the advance directive.
- A section where any health care representative or any alternate health care representative appointed by the principal may accept the advance directive by signature or other means, including electronic or verbal means.
SB 494 § 3(3)(a)-(i). Additionally, the advance directive must incorporate the components of the form Appointment (as the method for selecting a health care and alternate health care representative). SB 494 § 3(5). § 6 of SB 494 sets forth a temporary form (hereinafter "Temporary Form" for an advance directive, in lieu of the form of the advance directive adopted by the Committee under § 3 of SB494, which is valid until January 1, 2021. SB 494 § 6. The Temporary Form contains most of the aforementioned mandatory elements.
Considered side-by-side, the current advance directive form and the Temporary Form are substantially similar. For example, both forms contain warnings for the principal and advise the principal of his or her rights. Moreover, both forms allow the principal to provide instructions/directions to the health care representative(s) regarding the principal's end of life care. There are, however, subtle, and concerning, differences.
The current advance directive form speaks in terms of the principal's "desires" for health care, while the Temporary Form speaks in terms of the principal's "preferences" for health care. See SB 494 § 6. Neither the term "desire" nor the term "preference" are defined in Oregon law or in SB 494. In plain English, "desire" is defined as "to express a wish for." "desire." Merriam-Webster.com. 2017. https://www.merriam-webster.com/dictionary/desire (March 6, 2017). "Preference," on the other hand, is defined as "one that is preferred." "preference." Merriam-Webster.com. 2017. https://www.merriam-webster.com/dictionary/preference (March 6, 2017). To "prefer" something, then, is "to like [it] better or best." "prefer." Merriam-Webster.com. 2017. https://www.merriam-webster.com/dictionary/preference (March 6, 2017). The legislature's decision to change "desire" to "preference" is somewhat concerning. While "desire" is understood to express one's wish (I want X), "preference" seems less mandatory. Colloquially speaking, when a person "prefers" that he or she receive a certain kind of care, we do not necessarily understand that to mean that he or she absolutely mandates (desires/wishes/wants) that care. Thus, turning from the principal's "desires" to his or her "preferences" in the advance directive seems to lessen the effect of what the principal actually wants, which is concerning. This movement away from the principal's express wishes is seen elsewhere in the Temporary Form. For example, in the current advance directive form, the health care representative agrees to the following in accepting his or her position as health care representative: "I understand I must act consistently with the desires of the person I represent, as expressed in this advance directive or otherwise made known to me." ORS 127.531. The Temporary Form, on the other hand, omits any such acceptance on the part of the health care representative, and the health care representative merely "accept[s]" appointment and "agree[s] to serve as health care representative" under the Temporary Form (and Appointment). SB 494 § 6.
The change from "desires" to "preferences" in the Temporary Form, and the omission of the health care representative's acceptance that he or she must act consistently with the desires of the principal, are cause for pause. The advance directive has traditionally been the mechanism by which one's specific health care wants are met when he or she cannot express those wants him- or herself. If the advance directive is to continue functioning as it has, lessening the effect of what the principal actually wants by using the term "preferences" and omitting other certain language from the Temporary Form is not the way to accomplish that. (Granted, ORS 127.535(4), as amended by SB 494, still provides that "[i]n making health care decisions, a health care representative has a duty to act consistently with the desires of the principal as expressed in the principal’s advance directive, or as otherwise made known by the principal to the health care representative." However, according to the Temporary Form, the principal is not considering the principal's desires, but his or her "preferences." Moreover, SB 494 § 3(3)(a) requires in the form advance directive a statement that the advance directive allows the principal to express his or her values and beliefs with respect to health care decisions and the principal’s preferences for health care, not the principal's desires for health care. It seems likely that the retention of the word "desires" in ORS 127.535(4) is unintentional.)
Of other concern is SB 494's proposed removal of the terms "life support" and "tube feeding" from ORS Chapter 127. The current advance directive form (and the Temporary Form) provide space for the principal to make designation with respect to end of life care decisions; these designations concern whether the principal wants "life support" or "tube feeding" in certain situations (i.e., when the principal is "close to death" or "permanently unconscious," has an "advanced progressive illness, or is experiencing "extraordinary suffering"). ORS 127.531; SB 494 § 6. (Even without an advance directive, if the principal has executed an Appointment, under Oregon law he can also make such designations to his health care representative(s) by simply expressing them to the health care representative(s).) Currently, "life support" is defined as "life-sustaining procedures" (“fife-sustaining procedures” mean "any medical procedure, pharmaceutical, medical device or medical intervention that maintains life by sustaining, restoring or supplanting a vital function") and "tube feeding" is defined as "artificially administered nutrition and hydration." ORS 127.505(16), (17), (24). These definitions apply to the current advance directive form, are paraphrased in the current advance directive form, and are necessary to limit the authority of a health care representative. For example, under the current law, if a principal is "close to death," and has designated in his or her advance directive that he or she does not want "tube feeding," the health care representative may direct the physician that the principal is to receive no "artificially administered nutrition and hydration," but the health care representative arguably could not, for example, direct the health care provider to forego assisting the principal with eating (e.g., spoon feeding). See In the Matter of the Guardianship of Nora Raupers Harris, Jackson County Circuit Court Case No. 13017G6.
As noted above, SB 494 proposes to remove the definitions of "life support" and "tube feeding" from ORS Chapter 127. This is problematic for a number of reasons. First, without definitions for "life support" and "tube feeding," the authority of a health care representative is not clear. That is to say, without definitions for "life support" and "tube feeding," a health care representative cannot know what medical procedures, medication, or otherwise he or she is authorized to allow or withhold under the principal's advance directive (which may attempt to instruct the health care representative with respect to "life support" or "tube feeding") or Appointment. Second, and relatedly, removal of the above definitions will increase litigation with respect to end of life decisions. By removing the definitions of "life support" and "tube feeding" from the statute, the legislature is essentially "passing the buck." That is to say, instead of defining the terms itself, the legislature is relying on the Oregon courts to define "life support" and "tube feeding. This will be time consuming and expensive for both principals and health care representatives, a scenario the advance directive is arguably designed to avoid. That having been said, in light of Harris (see above), this might be the legislature's intent - to force a court to define (and arguably broaden) the definitions of "life support" and "tube feeding." But such is poor legislation.
Additionally, it is odd that SB 494 proposes to remove the definitions of "life support" and "tube feeding" from the statute, but provides for those terms' respective meanings in the Temporary Form. The Temporary Form defines "life support" as "any medical treatment that maintains life by sustaining, restoring or replacing a vital function," and defines "tube feeding" as "artificially administered food and water." (Interestingly, these definitions mirror the current definitions contained in ORS 127, the definitions that SB 494 proposes to remove.) The inclusion of definitions in the Temporary Form raises an interesting question: Does the proposed removal of the definitions from ORS 127.505, in light of their inclusion in the Temporary Form, mean that however the principal defines "life support" and "tube feeding" controls (whether in the advance directive, in supplementary materials attached thereto, or otherwise made known to the health care representative)? In absence of case law to the contrary, this may very well be the case, especially in light of ORS 127.535(4) (as amended by SB 494) which requires the health care representative to act consistently with the desires of the principal however expressed, arguably including what the principal considers "life support" and "tube feeding." But this means that the principal, whether he or she has an advance directive or an Appointment, must expressly tell his or her health care representative(s) what he or she considers to be "life support" and "tube feeding." In the absence of such express definitions, which a person is not likely to express to his or her health care representative(s), we are back to where we were above, with the health care representative not knowing what medical procedures, medication, or otherwise he or she is authorized to allow or withhold on the principal's behalf. SB 494 needs to include specific, well-thought out definitions of "life support" and "tube feeding."
In conclusion, SB 494 proposes major changes to the current advance directive and health care representative scene. First, with the creation of the Committee, legal practitioners can expect periodic changes to the required form of an advance directive, meaning that what is currently valid, may not be valid four years from now, and meaning that practitioners will have to keep track of every iteration of the advance directive form just in case they have to prove the validity of an advance directive drafted using a previously valid form (assuming advance directives created using previously valid forms continue to be valid). In the same vein, periodic "updates" to the advance directive form will force health care providers to likewise periodically update their procedures with respect to handling advance directives, and will, to some degree, force principals and health care representatives to be masters of the law of advance directives (since they must be able to show why their particular advance directive is valid). Second, SB 494 provides for the creation of a brand-new document: The Appointment of Health Care Representative and Alternate Health Care Representative. While the Appointment provides an easy way to appoint a health care representative, it is not without its drawbacks, and unless a health care representative receives instructions from the principal (either in writing or orally) as to the principal's wishes with respect to his or her health care, the health care representative merely has a duty to act in a manner that the health care representative "in good faith" believes to be in the best interests of the principal, and what the health care representative believes to be in the best interest of the principal may not be what the principal considers to be in his or her best interests. ORS 127.535(4). Third, with respect to the advance directive, at least the current advance directive form and the Temporary Form under SB 494 are substantially similar. Unfortunately, SB 494's proposed change from "desires" to "preferences" in the statute and Temporary Form, and the omission of the health care representative's acceptance that he or she must act consistently with the desires of the principal, seemingly lessen the effect of what the principal actually wants with respect to his or her medical care. If the advance directive is to continue functioning as it has, as the mechanism by which one's specific health care wants are met when he or she cannot express those wants him- or herself, lessening the effect of what the principal actually wants by using the term "preferences" and omitting other certain language from the Temporary Form (and Appointment) is not the way to accomplish that. Fourth, and finally, SB 494's proposed removal of the definitions of "life support" and "tube feeding" is particularly problematic. Unless the principal (in the absence of a court decision otherwise defining the aforementioned terms) expressly defines "life support" and "tube feeding," and makes those definitions known to his or her health care representative(s), in many circumstances, the health care representative will not know what medical procedures, medication, or otherwise he or she is authorized to allow or withhold under the principal's advance directive or Appointment. Moreover, removal of the above definitions will increase litigation with respect to end of life decisions (as the courts will be forced to define "life support" and "tube feeding"), and such litigation will be time consuming and expensive for both principals and health care representatives, a result that the advance directive has traditionally been designed to avoid.