By Kaytlin M. Keen
A Do Not Resuscitate Order, commonly known as a “DNR,” and a Living Will are two commonly executed legal documents that ensure the medical care preferences of a patient are documented and honored.
What is a DNR?
A DNR is a specific medical order written by a physician or physician assistant that instructs healthcare providers not to perform cardiopulmonary resuscitation (CPR), or other life-saving measures, if a patient’s heart stops or if they stop breathing.
To be effective, A DNR must be presented to emergency medical personnel and must be on a form adopted by the department, signed by both the patient (or their authorized representative) and the physician or physician assistant.
What is a Living Will?
A Living Will is a broader legal document that allows a competent adult to outline their wishes regarding the provision, withholding, or withdrawal of life-prolonging procedures in the event they have a terminal condition, an end-stage condition, or are in a persistent vegetative state. The purpose of the Living Will is to provide clear and convincing evidence of the principal’s wishes regarding life-prolonging procedures.
Specifically, a Living Will can specify whether you wish to receive life-sustaining treatment if you are terminally ill or in a persistent vegetative state; and whether you want to be kept alive with the use of machines, or if you prefer comfort care measures to ease pain and allow for a natural passing. Living Wills can also address your desires regarding organ donation, pain management, and specific medical procedures, depending on the nature of your health care concerns.
The execution of a Living Will is also particular, in that it must comply with Section 765.302, Florida Statues, which states the following:
- Any competent adult may, at any time, make a living will or written declaration and direct the providing, withholding, or withdrawal of life-prolonging procedures in the event that such person has a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A living will must be signed by the principal in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative of the principal. If the principal is physically unable to sign the living will, one of the witnesses must subscribe the principal’s signature in the principal’s presence and at the principal’s direction.
- It is the responsibility of the principal to provide for notification to her or his primary physician that the living will has been made. In the event the principal is physically or mentally incapacitated at the time the principal is admitted to a health care facility, any other person may notify the physician or health care facility of the existence of the living will. A primary physician or health care facility which is so notified shall promptly make the living will or a copy thereof a part of the principal’s medical records.
- A living will, executed pursuant to this section, establishes a rebuttable presumption of clear and convincing evidence of the principal’s wishes.
This means that just drafting a Living Will is not enough. To be effective, a Living Will must be signed by the principal in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative of the principal. The principal’s physician should then be notified of the Living Will, normally by receiving a copy of the Living Will to keep in the principal’s patient file.
Key Differences Between a DNR and a Living Will
- Scope of Application: A Living Will is broader and outlines a variety of medical preferences, whereas a DNR is specific to emergency resuscitation (i.e., to situations where a patient is no longer breathing or their heart has stopped), and directs healthcare providers not to attempt resuscitation.
- Decision-Making Process: A Living Will is typically executed ahead of time, with the assistance of an experienced attorney, detailing how a patient wants to be treated in different medical scenarios, especially those where life-sustaining treatment might be necessary. A DNR is often created in collaboration with a patient’s doctor, and it directly applies to emergency situations where resuscitation is being considered in the not-so-distant future.
- Level of Detail: A Living Will provides detailed instructions on a patient’s overall healthcare preferences, including preferences regarding life-sustaining treatments, comfort, care, and more. A DNR is extremely limited by focusing specifically on the decision to withhold CPR or other resuscitation measures in the event of a medical emergency.
- Impact on Care: A Living Will may cover a wider range medical treatments and interventions, including the use of life-prolonging procedures such as artificial nutrition and hydration. A DNR focuses solely on the withholding of resuscitation efforts.
- Execution: A Living Will is typically drafted by an attorney and executed well in advance of being needed. Additionally, execution requires two subscribing witnesses, one of whom is neither a spouse nor a blood relative of the principal. A DNR on the other hand is usually drafted by a physician when circumstances rise to the level in which a DNR may be required. Only the patient and physician need to sign the DNR; subscribing witnesses are not required.
Why is a DNR and a Living Will Important?
Having either a Living Will or a DNR in place ensures that a patient’s medical treatment preferences are honored, even if a patient cannot communicate them at the time, without the need for a physician to rely on the decision of a family member or loved one.
End-of-life decisions can be emotionally charged, and they often occur in situations where individuals may be too ill or incapacitated to make decisions themselves. Both documents help remove confusion and reduce the emotional burden on loved ones during difficult times.
Designation of Health Care Surrogate
There is also a third legal document that comingles with the DNR and Living Will, known as a Designation of Health Care Surrogate. In Florida, a Designation of Health Care Surrogate is a written document in which a principal appoints a competent adult to make health care decisions on their behalf or to receive health information, or both. Additionally, a principal may designate an alternate surrogate who can assume the duties if the original surrogate is unable or unwilling to perform them.
The authority of the surrogate can be stipulated to take effect immediately or only upon the principal’s incapacity, as determined by a physician. The surrogate’s duties include making health care decisions in accordance with the principal’s instructions, providing informed consent, accessing the principal’s health information, and applying for public benefits on behalf of the principal.
This document must be signed by the principal in the presence of two subscribing adult witnesses, and an exact copy must be provided to the surrogate. The surrogate cannot act as a witness, and at least one witness must not be the principal’s spouse or blood relative.
How Does a Designation of Health Care Surrogate Impact an Existing DNR or Living Will?
A Designation of Health Care Surrogate allows the designated surrogate to make health care decisions on behalf of the principal, including decisions related to Do Not Resuscitate (DNR) orders and Living Wills.
If a DNR is already in place, the DNR will govern. This means that the surrogate will not be looked to for a decision regarding resuscitation because the patient has already made a binding decision through executing a DNR. If a DNR is not in place though, decisions regarding resuscitation fall within the surrogate’s discretion. A surrogate’s authority includes providing written consent for a physician’s order not to resuscitate if the principal is incapacitated at the time a physician is seeking to execute a DNR.
If a Living Will exists, the surrogate is required to follow the instructions outlined in the Living Will regarding life-prolonging procedures. The surrogate must ensure that the patient’s wishes, as expressed in the Living Will, are carried out. This means that a Living Will supersedes any discretion afforded to a surrogate designated via a Designation of Health Care Surrogate. However, in the absence of a Living Will, the surrogate has discretion on whether to withhold or withdraw life-prolonging procedures if the patient is in a terminal condition, persistent vegetative state, or end-stage condition, and there is no reasonable medical probability of recovery.