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What Happens if an Advance Directive and POLST Conflict?
As of this writing, there is no consistent policy across the U.S. regarding how to address a conflict between a person’s advance directive and POLST. In some states, the most […]
As of this writing, there is no consistent policy across the U.S. regarding how to address a conflict between a person’s advance directive and POLST. In some states, the most recent document executed by the patient takes precedence, while in others the healthcare proxy designated in the advance directive can rescind or override a more recent POLST. Further, in most jurisdictions, a healthcare surrogate can request that a provider sign a POLST for a patient who is incapacitated or unable to make their wishes known. In theory, this document could contradict the patient’s advance directive if it were not available at the time.
With that being said, most states attempt to preserve the right of the patient to make autonomous decisions and give precedence to the person’s wishes when those wishes are known. As in the case of the doctrine of “first person consent” for organ and tissue donation, the patient’s wishes are paramount and should not be overridden by the next of kin. Therefore, most providers will make every effort to determine what the patient would want.
For example, if the patient’s advance directive clearly states “No CPR,” but the health care proxy wants “everything done,” it’s unlikely that the patient’s wishes would be ignored. On the other hand, if the person’s advance directive indicates they want doctors to do everything possible to save their life, a health care proxy might successfully override that wish with a POLST if the patient’s condition were to drastically change (for example, if a previously healthy 75-year-old person had a devastating stroke).
This murky legal terrain highlights the importance of ongoing communication between the patient and surrogate decision-makers, including the health care proxy and next of kin. This is especially true for patients who are considering a POLST, for whom goals of care frequently change.
Sources
“First Person Consent: OPOS across the country are adapting to the change”. United Network for Organ Sharing. https://unos.org/wp-content/uploads/unos/registires_combined.pdf
