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Should Your Living Will Contain a “POLST” Provision?

In December 2011, New Jersey adopted a new law allowing "POLSTs" Physician (or Practitioner) Orders for Life-Sustaining Treatment. The law recently became effective. In essence, a POLST allows a patient and their doctor to create an order setting forth what specific life sustaining treatments the patient may want at the end of their lives. Generally speaking, these decisions would be made at a time when the medical community determines that the patient is at the end of their life, although POLSTs can be made at other times.

The POLST law also allows the patient's "representative" the right to also make POLST decisions and sign the POLST in accordance with the patients known preferences or in the best interest of the patients. The Act does not specify how the patient's representative is designated, but presumably the term would include a health care representative or health care proxy named in the patient's Advanced Health Care Directive, more commonly known as a living will.

This begs the question: Would you want your health care representative named in the living will to make POLST decisions on your behalf? This is not an easy decision. Not all persons would want to delegate this critical decision to another. And if a person did want their health care representative to make such decisions, would the medical community honor the decision if the living will does not contain specific wording setting forth the right of the representative right to sign the POLST?

For these reasons, we are recommending that persons who are seeking living wills to consider whether they would want their health care representatives to sign a POLST on their behalf in the event they are not competent to sign one on their own. If the patient does not want to grant that power to their health care representative then that should be set forth in the living will. If, on the other hand, they would like their heath care representative to have such power that should also be specific in the living will. If you already have a living will, should it be changed to include specific language as to the right of your health care representative to sign a POLST?

The decisions as to whether or not you would want a POLST is a personal one. Accordingly, the decision as to whether you would want your health care representative to also have that power is also a personal one. The decision should be made in consultation with your health care representative and the attorney who assists you in preparing your living will. At R. C. Shea and Associates, we have been guiding clients in preparing living wills for 20 years. Please call us to discuss whether you should include a POLST provision in your living will.