Making Sense of Health Care Directives in Arizona

When patients are too ill to make their own medical decisions, health care directives, also known as advanced directives, serve an important purpose. Executed while the patient is still mentally capable of making decisions, health care directives provide valuable guidance to family, caretakers, physicians, advanced practice providers, and practice staff about what decisions the patient would make if he/she could. Unfortunately, when patients, caregivers, and clinicians do not understand when and how these documents can be legally used it often triggers arguments.

As a result, MICA members frequently contact the Risk Team seeking guidance about how to manage interactions with patients and family members in situations involving patient health care directives and pre-hospital medical care directives and orders. Questions posed cover topics such as:

• • How to respond to family members demanding to make decisions for patients;
    
    
  • When and for how long a health care directive is effective;
    
    
  • The scope of health care directives; and
    
    
  • Validity of health care directives.

To provide some clarity for busy medical practices, this article provides an overview of Arizona laws governing health care and pre-hospital medical care directives.

Types of Health Care Directives Recognized in Arizona

Patients capable of making their own decisions may execute several types of health care directives recognized under Arizona law. Each of the following documents must meet certain statutory requirements discussed later in the article:

• • Living will: a statement intended to guide/control future health care decisions made on the patient’s behalf; sometimes combined with a health care power of attorney¹
    
    
  • Health care power of attorney (aka medical power of attorney): a document that designates an agent to make health care decisions when the patient is incapable of making decisions independently²
    
    
  • Mental health care power of attorney: a document that designates an agent to make mental health care decisions when the patient is incapable of making his/her own decisions³

Prehospital Medical Care Orders

There are also two types of prehospital order forms that are recognized in Arizona but not considered health care directives. These are:

• • Prehospital medical care directive, aka DNR order: a document that must meet statutory requirements and tells EMS, first responders, or emergency department personnel not to resuscitate the patient⁴
    
    
  • Physician orders for life sustaining treatment (POLST): a medical order form completed jointly by a physician and a patient who is at risk for a life-threatening clinical event due to a serious, life-limiting medical condition including advanced frailty

Living Wills

Adult patients use living wills to express in writing their preferences about future care, so others can make decisions for them if they become unable to make or communicate their own choices due to illness or injury. A sample living will is available here.

• • Living wills generally specify whether a patient wants comfort care, cardiopulmonary resuscitation (CPR), or other life-saving medical interventions.
    
    
  • Patients sometimes use living wills to disqualify potential surrogate decision-makers.⁵ For example, a patient might say, if I am in a coma I do not want my brother to make decisions about my care.
    
    
  • Living wills must contain signatures of the patient and a notary or, alternatively, at least one witness.⁶ The document must state that the notary or witness was present when the patient/”principal” dated and signed the document and that the patient/”principal” “appeared to be of sound mind and free from duress” at the time of signing.
    
    
  • Living wills do not designate a specific health care decision-maker, aka “agent.” However, patients can combine a living will with a health care power of attorney that appoints an agent to make future care decisions when the patient is unable.⁷
    
    
  • A living will template is available in the Arizona Attorney General’s Life Care Planning packet.

Health Care Power of Attorney (HCPOA)

Adult patients (“principals”) can use a HCPOA to designate an adult (“agent”) who will make future health care decisions for the patient if the patient is ever incapable of making or communicating his/her own choices.

• • A HCPOA must be in writing, dated, and signed by the patient/principal and either a notary or at least one witness;⁸
    
    
  • The agent cannot act on the principal’s behalf unless the principal is mentally and/or physically incapable of making or communicating a medical decision.⁹
    
    
  • The scope of the agent’s authority is limited only by the language of the HCPOA or court order.¹⁰
    
    
  • Under HIPAA, the agent is considered the patient’s “personal representative” and has the same right as the patient to access the patient’s medical records and discuss the patient’s protected health information (PHI).¹¹
    
    
  • A HCPOA template is available in the Arizona Attorney General’s Life Care Planning packet.

Mental Health POA (MHPOA)

An adult patient (“principal”) can execute an MHPOA to authorize an adult (“agent”) to make future mental health care decisions in case the patient ever becomes incapable of making/communicating his/her own.¹² Patients can execute a separate MHPOA or incorporate MHPOA provisions into their HCPOA.

• • Before the agent can make mental health treatment decisions for the principal, a neurologist, psychiatrist, or psychologist must determine that the principal cannot provide informed consent.¹³
    
    
  • The scope of the agent’s authority is limited only by the language of the MHPOA or court order except that agents may only consent to inpatient psychiatric facility admission if the MHPOA expressly gives the agent such authority.¹⁴
    
    
  • A MHPOA template is available in the Arizona Attorney General’s Life Care Planning packet.

Do Health Care Directives Expire?

HCPOAs and MHPOAs do not expire. They can be revoked by the patient or court order. Patients capable of making their own decisions may revoke agents’ authority:

• • In writing;
    
    
  • Orally by notifying the physician; or
    
    
  • By executing a new POA/MPOA.¹⁵

Prehospital Medical Care Directives aka DNR Forms

In Arizona, prehospital medical care directives are often referred to as DNRs. DNRs instruct EMTs and other pre-hospital emergency personnel not to use CPR, equipment, drugs, or devices to resuscitate patients in cardiac or respiratory arrest.¹⁶ To be valid under Arizona law, DNRs must meet the following requirements:¹⁷

• • A form that complies with this template must be printed on an orange background.
    
    
  • Letter or wallet size form may be used
    
    
  • Dated and signed by the patient and a licensed health care professional
    
    
  • Witnessed or notarized
    
    
  • Patients with a DNR form may also wear an orange bracelet on the wrist or ankle that is substantially similar to hospital ID bracelets and lists the patient’s name, the patient’s physician’s name, and says “Do Not Resuciate.”
    
    
  • DNRs are effective until revoked or superseded by a new document.
    
    
  • If the patient has a guardianship or a health care directive, the guardian or agent may sign a DNR for the patient if the patient is no longer competent to do so.

Physician Orders for Life Sustaining Treatment

Physician orders for life sustaining treatment (POLST) are medical orders that follow seriously ill or medically frail patients across the care continuum. Before completing a POLST form, a patient and his/her clinician have an advance care planning discussion regarding available treatment options and the patient’s preferences. Family members and caregivers may also participate in this conversation.

On a POLST form, which should be printed on pink paper, patients say whether they want:

• • Cardiopulmonary resuscitation;
  • Administration of antibiotics and IV fluids;
  • Intubation and mechanical ventilation;
  • Long term artificial nutrition; and/or
  • Any additional orders or instructions.

The Arizona Hospital and Healthcare Association offers helpful information about POLST, POLST forms, and FAQs for clinicians.

Obligations When Caring for Patients Who Are Not Capable of Making/Communicating Decisions

In Arizona, physicians, advanced practice providers, and other licensed health care professionals have certain legal obligations when caring for adult patients who are unable to communicate or make decisions about their own medical treatment. Licensed health care providers must make “reasonable efforts” to:

• • Determine if the patient has a health care directive;
    
    
  • Review and abide by any valid directive that exists; and
    
    
  • Consult with a patient’s surrogate – either an agent listed in a HCPOA/MHPOA or a court-appointed guardian.¹⁸

What if There is no Guardian or Agent for the Patient Who is Incapable of Making Decisions?

If a patient is incapable of making or communicating health care decisions and lacks a HCPOA/MHPOA or guardian, then Arizona-licensed health care providers are legally obligated to make “reasonable efforts” to locate a surrogate.¹⁹ Clinicians must comply with surrogate decisions unless they know such decisions are inconsistent with the patient’s health care directives.²⁰ Potential surrogates, in order of priority, are:

• • Spouse
  • Adult child
  • Parent
  • Domestic partner (if patient not married)
  • Sibling
  • Close friend (as defined by statute)²¹

Just as physicians and advanced practice providers would provide information about a patient’s care and health status to the patient, they must do the same for surrogates.²²

When Family Disputes the Validity of a Health Care Directive

Physicians and advanced practice providers likely have encountered patients’ family members who claim the POA in the medical record is invalid. They may argue the patient was not competent at the time of execution, the document is outdated, superseded by another document, or has been revoked, or the document is invalid because it was executed in another state. When faced with these situations, consider the following:

• • Physicians and advanced practice providers in Arizona are entitled, in good faith, to rely and act upon patient health care directives executed in other states. Arizona law considers these valid if they were valid where executed, provided they do not conflict with any Arizona criminal laws.²³
    
    
  • Physicians and advanced practice providers may assume a patient’s health care directive is current, valid, and genuine unless they know that the patient, while competent to do so, revoked the directive in writing or orally.

Physicians and advanced practice providers who make good faith treatment decisions based on surrogates’ instructions or “apparently genuine” living wills and HCPOAs/MHPOAs are immune from civil and criminal liability and not subject to professional discipline. “Good faith” under Arizona law includes:

• • decisions and actions (or lack of actions),
    
    
  • based on surrogate directives or a reasonable belief about a patient’s desires or best interests,
    
    
  • as long as not contrary to express written directions included in a patient’s health care directive.²⁴

Risk Team Tips

• • Clinicians and their office staff should have a process in place to ensure they are regularly collecting patients’ health care directives and filing them in the medical record.
    
    
  • Practices should set up access to Arizona’s Healthcare Directives Registry so that when the need arises, clinicians or staff can quickly log in and search for any directives a patient has registered that may not be in the medical record. Provide education to staff on accessing and searching the Registry.
    
    
  • Establish procedures for checking with a patient’s known POAs, caregivers, or treating physicians to ask if they have health care directive information. This may come in handy when a sudden need for a directive arises but there is nothing in the patient’s medical record.

 

^{[1] A.R.S. § 36-3201(10)}

^{[2] Id. at § 36-3201(6)}

^{[3] Id. at § 36-3201(11)}

^{[4] Id. at § 36-3251}

^{[5] Id. at § 36-3261(A)}

^{[6] Id. at §§ 36-3261(B) & 36-3221}

^{[7] Id. at § 36-3261(A)}

^{[8] Id. at § 36-3221(A)(2)-(3)}

^{[9] Id. at § 36-3223(A)-(B)}

^{[10] Id.}

^{[11] 45 CFR § 164.502(g)}

^{[12] A.R.S. § 36-3281(A)-(B)}

^{[13] Id. at § 36-3281(B)-(D)}

^{[15] Id. at §§ 36-3221; 36-3281(C); 36-3282}

^{[16] Id. at §§ 36-3223(C); 36-3284(A); 36-3285}

^{[17] Id. at § 36-3251(A)}

^{[18] Id. at § 36-3251(A)-(E)}

^{[19] Id. at § 36-3231(A)}

^{[20] Id.}

^{[21] Id. at § 36-3204(A)}

^{[22] Id. at § 36-3231(A)}

^{[23] Id. at § 36-3204(B)}

^{[24] Id. at § 36-3208}

^{[25] Id. at §§ 36-3205 & 36-3261}