Hawaii residents with advanced health directives and powers of attorney for health care written before 1999 should consider writing new ones, the head of the University of Hawaii Elder Law Program says.
"If it’s old, it may be worse than not having one at all," said Jim Pietsch, director of the Elder Law Program and an adjunct professor of geriatric medicine and psychiatry at UH’s medical school. "You tie yourself into definitions that any good attorney may be able to attack. You’re at the mercy of translations. What is a ‘terminal condition’? What is ‘hopeless’?"
His advice comes as dozens of seniors and their relatives have been seeking guidance from the Elder Law Program since the Star-Advertiser reported last week on the legal battle over end-of-life care for Oahu resident Karen Okada.
The Queen’s Medical Center had petitioned to have Okada’s feeding tube removed, in accordance with what Queen’s says are Okada’s wishes.
But Okada also granted her brother, former Honolulu City Council Chairman George "Scotty" Koga, power of attorney, and Koga does not want Queen’s to remove his sister’s feeding tube.
Hawaii legislators made it easier for patients to have their dying wishes followed in 1999 — just one year after Okada signed separate powers of attorney and advanced health directives.
"Advance directives drafted and executed after 1999 are usually much clearer and more enforceable than documents executed in Hawaii prior to that time," Pietsch said.
Pietsch urged everyone considering end-of-life decisions to talk to family members to make sure everyone understands their wishes when the time comes.
PUT IT IN WRITING
Hawaii has no required format for an advanced health care directive, but the University of Hawaii Elder Law Program provides short and long versions that people may use to declare their wishes. Both versions can be downloaded at www.hawaii.edu/uhelp/healthcare.htm.
AARP HELP
AARP Hawaii is offering three sessions on Oahu for family and volunteer caregivers of elders titled “Caring for Family, Caring for Yourself” which include a discussion of legal issues facing seniors.
A range of other issues also will be covered, including whether to care for loved ones at home or in a facility, diabetes and caregiving, family dynamics and staying mentally sharp.
All sessions are free and open to the public, and run from 8:30 a.m. to noon. To register, go online or call 877-926-8300.
>> Oct. 6, Faith Baptist Church, Kailua aarp.cvent.com/windwardcare
>> Nov. 10, Filipino Community Center, Waipahu aarp.cvent.com/leewardcare
>> Nov. 14, Ala Moana Hotel aarp.cvent.com/urbancare
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In 1996, Pietsch was a member of a Blue Ribbon Panel on Living and Dying with Dignity formed by then-Gov. Ben Cayetano. The panel issued its final report in 1998.
The panel unanimously agreed on six issues affecting most of the 8,000 people who die every year in Hawaii, Pietsch said, including urging that the content of advanced directives for health care, including "living wills," should be more specific and their provisions more binding.
The following year the Legislature passed Hawaii’s Uniform Health Care Decisions Act, which made it easier for doctors to follow a patient’s wishes, Pietsch said.
"We saw for a couple of years attorneys and doctors may have inadvertently been executing old documents," Pietsch said. "So we want to make sure the documents were drafted under the provisions of the Uniform Health Care Decisions Act."
Bruce Bottorff, associate state director of AARP Hawaii, called Okada’s court case "a mind-blower."
"Even if you do have all of your legal ducks in order, things can pop up that call into question what your issues are," Bottorff said. "It is a highly, highly complex and sensitive issue that we need to pay a lot more public and community attention to. With age comes diminished decision-making ability. If you don’t put onto paper what it is your wishes are, nobody can read your mind."
At a Hilo AARP Hawaii conference in September 2011, Bottorff said, only about 30 people out of 100 raised their hands when asked "How many have documents in place or have had conversations with family members?"
"It’s an indication of the fact that a lot of (baby) boomers and people even older haven’t taken the proper steps yet," Bottorff said. "And it’s absolutely essential that they do."
Before Okada’s situation went to court, Queen’s physicians already were scheduled to attend a closed staff meeting tonight at Queen’s conference center to discuss a wide range of issues, including the "roles and limitations of advanced health care directives and durable powers of attorney for health care," said Pietsch, who will be on the panel.
Pietsch is also a member of the Queen’s Ethics Committee, which considered the ethical issues pertaining to Okada’s case, but Pietsch was unaware of the case and did not participate in the deliberations.
So at Queen’s tonight — especially with a judge’s ruling pending over Okada’s situation — the discussion of advanced health care directives versus durable powers of attorney will center on "who makes the decisions," Pietsch said.
