Legal Issues when someone has Dementia – Consider a Do Not Resuscitate Order

This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.  The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared.  The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney.  The June 4, 2015 installment discussed how to decide whether to prepare a Living Will.  The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney.  The June 18 installment discussed the importance of making the General Power of Attorney “durable.”  The June 25 installment discussed the importance of NOT making the General Power of Attorney “springing.”  The July 3 installment discussed revoking prior Powers of Attorney.  Today’s installment will discuss Do Not Resuscitate orders.

Do Not Resuscitate orders are hard.  Choosing to execute a Do Not Resuscitate order is a decision to allow death to take you (in the event that the lungs or heart stop.)  Choosing a Do Not Resuscitate order (We’ll call it a “DNR” frequently through the rest of this discussion.) is like choosing to execute a Living Will (discussed in the June 4, 2015 installment.)  The difference between a DNR and a Living Will is a difference in the part of the body that is giving out.  With a Living Will (at least for the purposes of this ongoing blog about dementia sufferers,) the brain has given out.  With a DNR, the heart or lungs have given out.  A DNR and a Living Will are similar in that the person executing (Please remember from our earlier discussions, “executing” a document is a fancy way of saying that someone signed a document that has some legally significant result.) a DNR or Living Will is documenting a decision to be allowed to die from something that hasn’t happened yet.  With a Living Will, the principal (the person who executes the document) has chosen to let his or her body die if, in the future, his or her brain dies.  With a DNR, the principal is choosing to die from a heart attack or respiratory distress that might happen in the future.  (Just to avoid some reader’s confusion, a Living Will is, in effect, a DNR for someone whose conscious brain has died while the autonomic nervous system is still keeping the vital organs going.  If someone is in a persistent vegetative state and has executed a Living Will, that person will not be rescued from a heart attack or respiratory distress, in keeping with the wishes expressed in the Living Will.  The possible causes of death of the body of the principal on a Living Will are not limited to heart and lung failures, though.)

Why would anyone choose to allow themselves to die from a heart attack or respiratory distress that hasn’t yet (and may never) occur?  In most cases, the principal chooses a DNR because the principal is facing some ailment that will lead to death in a more unpleasant way than a heart attack or respiratory failure.  For example, someone suffering from an advanced cancer (for which no treatment is expected to help) might expect a long, painful death.  Such a person might wish to die quickly from a heart attack rather than slowly from cancer.  Such a cancer sufferer executing a DNR is NOT asking for a heart attack.  The cancer sufferer who executes a DNR is telling the world, in effect, “Please don’t bring me back from a heart attack because bringing me back will make me continue to suffer the pain of my cancer for a while longer.”

Someone suffering from dementia might wish to make the same choice.  Someone suffering from dementia might wish to allow a heart attack to take them quickly than suffer through the prolonged decline of dementia.  I certainly don’t advocate executing a DNR, but I think I can understand why a dementia sufferer might want to have one.

Now, to be clear, the dementia sufferer that we are talking about is someone who has dementia but not advanced dementia.  To legally execute a DNR (like with a Health Care Power of Attorney, Living Will, or General Power of Attorney,) the principal must understand what he or she is doing (according to the law in Ohio, where I work.)  To have the ability to understand, the principal’s dementia must not be advanced.

Unlike a Health Care Power of Attorney. a Living Will, and a General Power of Attorney that have been discussed in prior installments, the principal cannot execute a DNR by himself or herself.  All DNRs (in Ohio, anyway) require the signature of a physician, certified nurse practitioner, certified nurse specialist, or physician assistant.  The co-signature by the medical professional is a way to make sure that someone isn’t executing a DNR out of depression or some wish to die.

In summary, in addition to the Health Care Power of Attorney, Living Will, and General Power of Attorney discussed previously in this series, someone who has dementia that is not yet advanced may wish to consider a Do Not Resuscitate order.

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