(The author is a patient advocate, founder of Ending Well! Patient Advocacy, and is FEN’s surrogate consultant. She focuses on end-of-life care and planning, aiming to help people have a “good death.” She can be reached at Final Exit Network and LinkedIn. – Jay Niver, editor)
As Final Exit Network’s Surrogate Consultant, people often ask me about the wisdom of naming two people as co-surrogates in their advance directive. There are many reasons why this is not a good idea, even though people are confident their children would be perfect candidates in the co-surrogate roles.
The first question to ask is, can you legally choose more than one surrogate? You are always free to choose one surrogate, and in some states, you are allowed to pick more than one, such as choosing your two children or your spouse and child as co-surrogates. However, I caution you to check your individual state because there may be a prohibition against choosing more than one surrogate or power of attorney for healthcare. The laws in each state vary, so make sure it’s even possible before you set yourself up for a problem that legally should not exist. For example, in Massachusetts the law states, “Every competent adult shall have the right to appoint a healthcare agent by executing a healthcare proxy.” Most professionals interpret that wording to mean you can only appoint a single person.
You can, however, name any number of alternate healthcare agents, but in many states, you can only have one primary surrogate.
If you get past that hurdle, understand that medical staff prefer ONE person making your healthcare decisions. Staff want one decision-maker, because it’s more efficient in an emergency. The other reason is that if two people are in charge, there is always room for disagreement, and they could give conflicting instructions. It gets too confusing and cumbersome when medical staff have to track down and consult with two or more people, even if the surrogates are on the same page regarding treatment.
Medical teams need answers and don’t have time to locate two or more surrogates or wade through family disputes.
People often fear that if they don’t name both or all their children as their surrogates, one or more of them will be disappointed or hurt. It is more likely that while your children love you, they would rather not make life-or-death decisions for you. It would be better to have that conversation with them long before anyone is called upon to follow your Advance Directive and be uncomfortable or reluctant to act.
It would be best if you had an alternate, and you could have a second child in that role. If they are close sibs, they can collaborate and be in on all conversations with you, so there is no question about what you want if, for some reason, #1 is not available, and #2 has to step in. They may want to talk between themselves and decide who they think is the best choice as your primary advocate.
The most important goal is to choose a strong surrogate who will carry out your wishes. Here are some traits to look for when selecting an effective surrogate: https://finalexitnetwork.org/tips-on-choosing-an-effective-surrogate/
If you have a hard time deciding which person to choose, there is a helpful tool from the American Bar Association. It lists the qualifications of a suitable surrogate, and you can compare the two or three people you are considering and see how they measure up. You may find some surprising answers in weighing your potential choices, but it should help you winnow out the less qualified candidates. https://www.americanbar.org/content/dam/aba/administrative/law_aging/tool1.pdf
Another question to consider about appointing your children as surrogates: Is one better equipped emotionally, more reliable, or more medically knowledgeable?
If I had to choose between a son who is an artist and a daughter who is a nurse, I would go with her every time. I think most people would. I would put the artistic son in charge of writing my eulogy or planning an incredible Celebration of Life after I am gone.
In an article published in AgingCare.com, Attorney Carolyn Rosenblatt explained why having one surrogate is best and how to choose. She described her two children and said that all other things being equal, one was always late, so she decided to appoint the always on-time and more reliable child – it had nothing to do with favoritism. She reasoned, “If a doctor wanted to call a meeting at 2 p.m., to discuss what to do about me in a coma, I’d want the decision-maker to show up on time.”
The proverb that “two heads are better than one” does not apply here, because most professionals think having more than one healthcare surrogate is a bad idea. In fact, I have not read anything that suggests otherwise. When you are incapacitated, the last thing you need is a debate about treatment options among your surrogates or loved ones.
The best practice is to choose two people, but you name one as the primary and the other as the alternate. This process will help ensure that one or the other (not both together) will carry out your treatment goals. This choice will help ensure that your end-of-life wishes are honored without unnecessary bedside conflict or confusion.
For those of us without children and without spouses, finding a surrogate is nearly impossible. I have appointed my brother legally, but do not expect him, with his mild personality and great distance, to have the wherewithal to fight doctors. He knows my wishes to not have my life extended, but that knowledge didn’t prevent extreme resuscitation efforts when he had medical power of attorney for my mother, because the EMTs were there and ignored what he said on the phone from far away. In a slower case of demise, he would travel to where I was, but I have no faith in his ability to exercise the kind of force that would be needed to prevent what I want prevented. So how do we get a surrogate who would be effective, outside of family?
FEN board member Janis Landis addresses the commenter’s concerns:
If people do not have a family member or friend to serve effectively as a surrogate, the best option is to seek a professional (paid) surrogate. Often, a social worker or patient advocate is able to fill this role.
One source for locating such a surrogate is the Aging Life Care Association.
FEN recognizes that the lack of an available surrogate is an increasing problem. Later this year, we will be providing training for end-of-life doulas to serve as surrogates. They will charge a fee, but FEN is providing the training at no cost so they can offer a reduced fee to FEN members.
Regarding DNRs and EMTs, there are two documents that provide EMTs information re: treatment: a DNR (Do Not Resuscitate) or a POLST (Physician Order for Life Sustaining Treatment). In some States, a POLST is called a MOLST (Medical Order for Life Sustaining Treatment).
An EMT will honor the instructions in either document. But to do that, the EMT must have ready access to the directive. Copies should be prominently placed in your home (the refrigerator door is recommended), and a copy kept in the glove compartment of your car. For extra security, many people buy medical bracelets, widely available on the Internet, that state “Do Not Resuscitate” so that the information is immediately available and evident.
One more thing: DNRs and POLST/MOLST provide different levels of choice. This video provides a clear explanation: https://youtu.be/TXJDZrM3mHo
Adds post author Althea Halchuck:
The DNR, DNH (Do Not Hospitalize) or a MOLST are usually printed on neon paper to stand out for EMTs. The MOLST has much more detail and usually contains those orders. EMTs will follow all these forms.
I heard from a couple of EMTs that they wouldn’t read an Advance Directive because they don’t have time and it requires interpretation. They advised to always carry a wallet card with your surrogate’s name – even better, you can put your emergency contact numbers for them to access on your locked smartphone. On Androids, it is under where you put the pin numbers, “emergency call.”
Regarding EMTs following instructions on a refrigerator. My daughter and myself are EMTs and have worked in several different states. We have discussed this with each other and our respective ambulance services on many occasions and for what it’s worth, we are going to try to resuscitate any patient we roll on per instructions of our employers. Their reasoning is that if someone has called for emergency services, it is because someone there believes the patient wants rescued or has a personal desire for the person to live. It is a huge area of conflict for us as we want to do our jobs and follow the law but we cannot risk standing by allowing a patient to die because we followed bystander instructions or something posted on someone’s refrigerator. I wish there were a way we could confidently respect a persons wishes not to be resuscitated but if we allow a patient to die by doing nothing we are opening ourselves up to potential lawsuits. None of us are willing to find ourselves standing in a courtroom saying well I let them die because they had a bracelet that said DNR or there was a paper stuck to their refrigerator. We desperately need a way for people to file their legal documents with their local emergency services and /or instruct them not to call for an ambulance if the patient does not want life saving procedures.
FEN board member Janis Landis and Surrogate Consultant Althea Halchuck provide this response to Ms. Carter:
EMTs should be aware that disregarding a DNR which has been prominently displayed for their information is neither the ethical nor legal way to go.
The assumption that “someone” wanted resuscitation for the patient is unwarranted. First, because the 911 call may have been to see if a different intervention (such as oxygen) might be helpful. Second, because the caller may not even be a family member. In many cases, the caller will be a hired caregiver who, understandably, does not want to take on the burden of allowing the patient to die. This does not give the EMT authority to override a DNR order or a POLST (Physician Order for Life Sustaining Treatment, also called a Medical Order for Life Sustaining Treatment.).
POLST forms are medical orders that all providers, including EMTs, should follow. The two sections important for them are: 1. Section A (CPR/DNR section). This tells EMS providers whether to attempt CPR or not. 2. Section B (medical interventions section). This tells EMS whether to transport the patient to the hospital. If the patient’s form says:
• Full Treatment – patient wants the standard of care and is fine going to the hospital.
• Selective Treatment – patient is okay going to the hospital but does not want to be intubated or go to the ICU.
• Comfort-Focused Treatment – the patient does not want to be transported. ONLY transport the patient if their comfort needs cannot be met where they are.
POLST forms may be printed. However, it is preferred that they be printed double-sided on hot-color paper to be more easily identifiable. This is a recommendation to better ensure easy recognition (not a requirement).
Lawsuits for “wrongful prolongation of life” because of disregard for a patient’s written directive are increasingly common and result in large monetary settlements. I think the EMTs who knowingly disregard such an order would find themselves called to testify and explain why they subjected the patient to unnecessary and unwanted suffering.
I urge any EMT who is not clear about their legal and ethical responsibilities in DNR cases to seek clarification BEFORE being presented with an actual case, both for the patient’s sake and their own professional responsibility.
POLST or MOLST (in some states) orders are not intended for someone who merely reaches a certain age. An ethical health care provider only signs a POLST or MOLST order when someone has a life expectancy of <= one year.