Healthcare Proxy vs. MOLST – Do I Need Both Documents to Ensure My Wishes Are Carried Out?

Remember the Obamacare ‘death panels?’

In the months leading to the passage of the Affordable Care Act, Sarah Palin coined that term to describe a provision that allowed Medicare to reimburse doctors for end-of-life discussions with their patients. It was a successful public-relations ploy to turn the American public against the act, painting it as the work of a nefarious bureaucracy out to kill off the old and sick to save a buck.

The offending provision was removed before Congress passed the Affordable Care Act.

The tides have changed. Medicare is soon to announce that end-of-life, or ‘advance-planning,’ conversations will be reimbursed. The proposed regulation was introduced in July of this year by the Centers for Medicare and Medicaid Services and, with little to no opposition, is expected to take effect in January 2016.

What does an advance-planning conversation sound like?

A doctor (or nurse practitioner or physician’s assistant) should get a sense of what her patient’s wishes are regarding resuscitation, intubation, life support, and palliative care. These wishes can then be documented in a medical orders for life-sustaining treatment (MOLST) form. In addition, the medical professional should encourage her patient to consider who can be trusted to make medical decisions in the event the patient is incapacitated.

That trusted individual can be named in a healthcare proxy. Both the MOLST and the healthcare proxy are vital documents, but each involve different aspects of advance planning. Here’s what you need to know.

MOLST

The Massachusetts medical orders for life-sustaining treatment form is a medical document, signed by the patient and a medical professional. This document is similar to a prescription and contains medical orders to withhold or provide various treatments, such as CPR, intubation, and sustained ventilation.

Many people are familiar with DNRs, or do-nor-resuscitate orders. The MOLST is similar but broader, and can include a DNR order. One can have both a DNR and a MOLST, but if a situation calls for resuscitation, the most recently signed form will take precedence. If the emergency requires consideration of other treatments, the MOLST will apply.

This document is often printed on bright pink paper and kept near the individual — on a bedside table or refrigerator, for example — and travels with her, as an alert to emergency responders to follow the medical orders outlined. The MOLST form is not recommended for everyone, but for individuals who have a serious illness or injury, it can offer important protections. Anyone can sign a MOLST; for those patients under age 18, a guardian’s signature is valid.

Healthcare Proxy

A healthcare proxy, by contrast, is a legal document signed by the individual, witnessed, and notarized. This document appoints a healthcare agent — someone the individual trusts to make medical decisions if (and only if) she is incapacitated and unable to make decisions herself.

Many hospitals have basic healthcare proxy forms available for individuals admitted for care. While they can be helpful in some short-term cases, these forms are usually not comprehensive. Very often there is space to name only one agent. In the event that the named agent is unwilling or unavailable to make decisions in a crisis, such forms do not provide a backup proxy.

Additionally, these basic healthcare proxy forms usually do not include guidance for the healthcare agent. While there is no living-will statute in Massachusetts, some attorneys integrate living-will language into the healthcare proxy. This allows the individual to express her wishes regarding end-of-life care.

Some decisions to be addressed may include a desire not to be kept alive artificially if there is no chance for recovery, to donate organs, or to be cremated. Even if the individual has had this conversation with her named agent, in a highly emotional medical crisis, written wishes serve as a powerful and comforting guide.

Healthcare proxies are a good idea for all individuals, healthy and ailing, but can be signed only by those over age 18. Without a healthcare proxy, family or friends may be forced to petition the court for guardianship in order to receive medical information and make medical decisions for a loved one.

How are the MOLST and healthcare proxy different, and are they both necessary?
For those who are not suffering from a serious illness or injury, a healthcare proxy alone should be sufficient. A document naming a trusted agent and a backup (or two), with language expressing the individual’s end-of-life wishes, is valuable for all.

The healthcare proxy is a legal form, and while it provides the necessary appointment of an agent and expression of wishes, it carries little weight with emergency responders. In a life-threatening emergency, responders will not abide by a healthcare proxy, but will treat and transport the patient to the hospital. It is there in the hospital that the healthcare proxy can be invoked if the patient is incapacitated. In contrast, emergency responders will almost always abide by the directions in a MOLST, provided they are aware of the document when answering a call.

For those who have been seriously injured or diagnosed with a life-threatening condition, both a healthcare proxy and a MOLST are recommended. v

Valerie Vignaux is an associate attorney with Bacon Wilson and a member of the firm’s Estate Planning and Elder Law team. She assists clients with all manner of estate planning. She also spent a year serving as Superior Court clerk to the justices of the Massachusetts Trial Court; (413) 781-0560; vvignaux@baconwilson.com