Healthcare Proxy‐by‐Statute

day 6

In Colorado, no one is given automatic authority in decision making for another adult, and healthcare providers cannot simply make decisions for individuals except in an emergency.

  • “Next of kin,” spouses, adult children, or other relatives are not authorized decision makers unless duly appointed as a Healthcare Agent or Guardian.
  • If an individual does not have a Healthcare Agent under Medical Durable Power of Attorney or Guardian, and if that individual is unable to make or express decisions, a “Proxy-by-statute” is needed.
  • First, the individual’s physician “certifies” that the individual does not have capacity to make his or her own decisions. As of January 1, 2009, Advanced Practice Nurses (APN) may also make this determination about an individual in collaboration with the attending physician. Such collaboration may be done in person, by phone, or electronically. The nurse must document the name of the physician with whom she or he collaborated.
  • Next, the physician, APN, or someone designated by the physician or APN must make a good faith effort to locate and assemble (physically or via communication technology) people who have an interest in the care of the individual who is ill.
  • These “interested parties” – which can be family members by blood, marriage, or adoption; life partners; close friends; pastoral or other advisors – determine by consensus which one of their group will serve as the “Proxy” for the individual.
  • Once the Proxy is selected, the physician or APN documents the name and contact information for the Proxy in the medical chart. The individual must also be informed of the choice of Proxy.
  • If the group cant agree on who the Proxy should be, then guardianship must be pursued through the courts.
  • Like a Healthcare Agent, the Proxy should act according to the known wishes and values of the individual; so the Proxy should know the individual well and, if possible, have a clear understanding of his or her wishes and values and how they might affect medical treatment decisions
  • Proxies selected in this way cannot withhold or withdraw artificial nutrition and hydration for the individual, unless two physicians (one trained in neurology) determine that the treatment is only serving to prolong the individual’s death.
  • The Proxy-by-statute process is intended as a stop-gap in unexpected circumstances or for a particular episode of care. Proxy-by-statute decision makers are not intended to remain in the role indefinitely. If the individual requires long-term medical decision making, an interested person should seek Guardianship through the courts.
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How to Select a Healthcare Agent or Proxy


When you decide to pick someone to speak for you in a medical crisis, in case you are not able to speak for yourself, there are several things to think about. Below is a list of suggested items to review or use as a guide when you’re selecting the person you would like to act on your behalf.

  • Usually it is best to name one person or agent to serve at a time, with at least one successor, or back-up person, in case the first person is not available when needed.
  • The person or people you select will need to meet the legal criteria in your state for acting as agent or proxy or representative?
  • You will want to make sure they are willing to speak on your behalf as well as being able to act on your wishes and separate his/her own feelings from yours.
  • It is suggested that this person Lives close by or could travel to be at your side if needed.
  • Knows you well and understands what’s important to you.
  • Is someone you trust with your life?
  • Will talk with you now and in the future about sensitive issues and will listen to your wishes.
  • Will likely be available long into the future?
  • Would be able to handle conflicting opinions between family members, friends, and medical personnel.
  • Can be a strong advocate in the face of an unresponsive doctor or institution.

The person you choose to make health care decisions for you is known by different names in different states. This person is sometimes called a health care agent, proxy, representative, attorney-in-fact, surrogate, or even patient advocate. State rules for who may be a health care proxy vary, but the most common groups disqualified are these:

  • Anyone under age 18.
  • Your health care provider, including the owner or operator of a health or residential or community care facility serving you—unless this person is your spouse or close relative.
  • An employee of your health care provider—unless this person is your spouse or close relative.


What you will need to do after selecting a person to act on your behalf.

  • Talk to your proxy about the qualifications on the first page of this worksheet.
  • Ask permission to name him or her as your decision maker.
  • Discuss your health care wishes and values and fears with this person.
  • Make sure your decision maker gets a copy of your advance directive and knows where to find the originals.
  • Tell family members and close friends whom you picked.

Most people wish to give their agent the broadest authority possible to make all health care decisions when they are no longer able, including those about the use of life-sustaining treatments such as artificial nutrition and hydration. If you do not wish to give such broad authority to the decision maker you have selected, think about what limitations you would impose and describe them as best you can.

Key Question: If you include written instructions in your advance medical directive and there is a conflict between your decisions instruction and your advance directive, which takes priority? You will want to specify My Agents Direction or My advance medical directive.



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Medical Durable Power of Attorney (MDPOA)


Please be aware that what follows is just information, not advice. Every situation is different. If you have questions about your particular situation, please speak to an appropriate qualified healthcare or legal professional. More information about advance directive documents and the Colorado specific forms can be found on the Colorado Advance Directives Consortium website: or

♦ In Colorado, no one is automatically authorized to make healthcare decisions for another adult.

♦ The Medical Durable Power of Attorney (also called the “Power of Attorney for Healthcare”) is a document an individual (the principal) signs to appoint someone else to make the principal’s healthcare decisions in case of incapacity. The person appointed is called a “Healthcare Agent.”

♦ In most cases, the Healthcare Agent only makes decisions for the principal when he or she cannot. This may be temporary, following an accident or injury, or long term, if the principal is permanently incapacitated.

♦ The Healthcare Agent is authorized to request and review medical records, consult with the principal’s doctors and other healthcare providers, and make all necessary healthcare decisions.

♦ The Healthcare Agent is supposed to act according to the principal’s wishes and values, so whoever is appointed as agent must have a clear idea of the principal’s life values, goals, and preferences for treatment. The Healthcare Agent must be able to devote the time and energy to handling complex healthcare needs, perhaps over many years.

♦ A Medical Durable Power of Attorney (MDPOA) is not the same as a general Power of Attorney (POA). The MDPOA Agent is only authorized to make healthcare decisions. A general POA covers legal and financial affairs. The authority of both types of Healthcare Agent ends at the death of the principal

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Cardio-Pulmonary Resuscitation (CPR) Directive


♦ A CPR (cardiopulmonary resuscitation) directive allows an individual to direct in advance that no one should administer CPR if the individual’s heart or lungs stop working or malfunction.

♦ CPR directives are almost always used by individuals who are seriously or terminally ill or elderly. In these situations, the trauma involved in CPR is likely to do more harm than good, but emergency personnel are obliged to perform CPR unless a CPR directive tells them not to.

♦ A CPR directive is not the same as a DNR order. A DNR order is a doctor’s order made for seriously or terminally ill individuals in healthcare facilities, including nursing homes. The DNR does not require the individual’s consent, and it does not remain in effect if the individual leaves the facility.

♦ A CPR directive must be signed by both the individual (or the individual’s Healthcare Agent or Proxy-by-statute) and his/her physician. Faxes, photocopies, and electronic scans of CPR directives are just as valid as original forms.

♦ CPR directives must be immediately visible to emergency personnel.

For more active folks with CPR directives, a wallet card or special CPR directive bracelet or necklace can be obtained. Contact Award & Sign Connection,, 303-799-8979, or the MedicAlert Foundation,, 888-633-4298 for more information.


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A Breif Overview Of The Colorado Medical Orders For Scope Of Treatment (MOST) Form


The Medical Orders for Scope of Treatment (MOST) program begins with a conversation between a healthcare professional and patient (individual) to determine preferences in key areas of life-sustaining medical treatment, including CPR, scope of treatment, and artificial nutrition.

The conversation may be guided by any healthcare professional with sufficient expertise to discuss the medical facts of the individual’s situation and likely risks and benefits of the various treatments described. The decisions are then documented on the MOST form: a 1-page, 2-sided document that consolidates and summarizes those individual preferences.

Individuals may refuse treatment, request full treatment, or specify limitations.  These preferences may be previously or more extensively documented in advance directives, such as a Living Will, CPR Directive, or Medical Power of Attorney. Completion of a MOST does not revoke these instruments; all such other directives remain in effect. In general, the MOST overrules prior instructions only when they directly conflict.

A more recently completed MOST, however, invalidates all previous MOST forms. The MOST form was significantly revised in 2015; earlier forms remain valid unless and until they are superseded by a newer version. The MOST is primarily intended for elderly, chronically, or seriously ill individuals who are in frequent contact with healthcare providers.

No one is or may be required to complete a MOST.

The MOST must be signed by the individual or, if incapacitated, by the individual’s authorized Healthcare Agent, Proxy, or Guardian. It must also be signed by a physician, advanced practice nurse, or physician’s assistant. This signature translates patient preferences into medical orders, which must be followed regardless of the provider’s privileges at the admitting facility.

The standardized form can be easily and quickly understood by individuals, healthcare providers, and emergency personnel. The original is brightly colored for easy identification, but photocopies, faxes, and electronic scans are also valid.

The MOST form belongs to and “travels” with the individual; it must be honored in any setting: hospital, clinic, day surgery, long-term care or rehab facility, ALR, hospice, or at home. The portability of the form allows seamless documentation of treatment preferences and closes gaps as individuals transfer from setting to setting or experience delays in access to providers.

A section on the back prompts individuals and providers to regularly review, confirm, or update choices based on changing medical conditions and goals. Healthcare providers who cannot follow the orders for moral or religious reasons may decline, but they must arrange prompt transfer of the individual to another provider who will comply with the orders.

A master MOST form can be downloaded from the Colorado Advance Directives Consortium website:

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Advance Directives in Colorado

keep calm

National Health Care Decisions Day is April 16th! For 2017 it will be a week-long event from April 16th – 22nd. In honor we will be posting daily information on Advance Directives.

Since 1985, the Colorado General Assembly has authorized several methods for individuals to document advance medical directives and/or appoint surrogate healthcare decision makers.

  • Colorado Directive as to Medical Treatment (aka “living will,”)
  • CPR Directive
  • Medical Durable Power of Attorney for Healthcare
  • Healthcare Proxy process (see Appendix A for details)

The first two – the living will and CPR Directive – document refusals of certain life-support treatments under certain circumstances; the second two provide mechanisms by which legal representatives or surrogates may be identified for the purpose of healthcare decision making. (For more information on these advance directives and appropriate forms, please refer to Your Right to Make Health Care Decisions [CHA, 2012]). All four tools are empowered by the well-established, in law and medical practice, right of a competent adult to refuse any medical treatment at any time for any reason, even if the result is death.

The Federal Patient Self-Determination Act of 1990 requires any healthcare facility receiving federal funds to ask patients whether they have advance directives and to provide information on the available options, if desired. Despite this requirement, and more than two decades of vigorous efforts to educate the public about their rights and responsibilities with respect to advance medical treatment decision making, it is estimated that only about 18 to 30 percent of Americans generally and only about 1 in 3 chronically ill individuals have executed advance directives. Among the critically or terminally ill, the rate does not exceed 1 in 2 (USDHHS, 2007). Furthermore, even when advance directives are completed, barriers and stumbling blocks can impede their use.

There are numerous explanations for the “failure” of advance directives, but some of the most often cited include:

  • Opportunities for discussion of possible treatment preferences and documentation of decisions are limited by systemic gaps or constraints and personal issues.
  • Documented treatment preferences/decisions are unclear, not specific, or not relevant to the individual’s current health status.
  • Documents – or surrogates – are not available at the time they are needed.
  • Documents are incomplete, in a form that is not familiar to the healthcare professional or setting, or otherwise do not conform to legal or standard practice requirements. (USDHHS, 2007)

Some intensively collaborative educational efforts focused on particular communities have achieved completion and adherence rates well above 70 percent (e.g., LaCrosse, WI [Hammes & Rooney, 1998]; Oklahoma [McAuley, 2008]). Other interventions have focused on particular factors, such as enhanced training of healthcare and social service professionals, community education, introducing setting-specific systems (e.g., automatic completion of ADs on nursing home admission), and improving particular documentation tools.

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Hospice Care for Mesothelioma Patients

Mesothelioma is a cancer that forms around the lining of the lungs or abdomen. Asbestos exposure is the primary cause, accounting for approximately 80-90 percent of cases.
Most cases of mesothelioma grow and spread quickly. The cancer doesn’t begin to cause symptoms until it spreads beyond the mesothelial lining, usually around stage III or IV.
Symptoms of pleural mesothelioma, which forms around the lungs, include chest pain, difficulty breathing, hoarseness and dry cough. Symptoms of peritoneal mesothelioma, which develops around the abdomen, include abdominal pain, distention, abdominal swelling and digestive issues such as constipation.

Anti-cancer treatments, including surgery, chemotherapy and radiation therapy, can control symptoms and extend survival, but no cure for mesothelioma is available yet.
The average survival rate for mesothelioma is around one year. People diagnosed early who qualify for surgery and other aggressive treatments often live three or more years. For example, around half of peritoneal mesothelioma patients who undergo surgery and heated chemotherapy live longer than five years.

Hospice care is a valuable resource and source of support for people with mesothelioma who have run out of effective treatment options. Hospice is known for excellent palliative care, which aims to control symptoms and maximize quality of life.
“We’ve been wrong about what our job is in medicine. We think our job is to ensure health and survival. But really it is larger than that. It is to enable well-being,” says Atul Gawande, author of the award-winning book “Being Mortal,” surgeon at Brigham and Women’s Hospital and professor at Harvard Medical School in Boston.

Hospice has much to offer for people with mesothelioma to improve their well-being including skilled nursing, prescribing medication, mental health counseling and support groups.

Benefits of Hospice Care for Mesothelioma Patients
Nurturing well-being and boosting quality of life are the primary end goals of hospice care.

Hospice medical professionals achieve these goals by using palliative care principles to control symptoms, occupational therapy to minimize challenges and mental health counseling to address emotional health.

As mesothelioma tumors expand and spread they affect important bodily systems and functions. People with pleural mesothelioma, which accounts for 75 percent of all mesothelioma cases, eventually develop pulmonary dysfunction. Hospice staff can help by teaching patients breathing techniques and finding positions for sitting and sleeping to promote better breathing. Hospice can also prescribe medicines that work to improve shortness of breath and relieve chest pain.

Pleural and peritoneal mesothelioma patients develop digestive issues and difficulty swallowing, whether directly from the cancer growing or indirectly as side effects of cancer treatment. These complications get in the way of eating and drinking enough to obtain adequate nutrition and fluid intake. Hospice nurses are equipped to help patients troubleshoot eating and drinking challenges by offering advice on what to eat and how to prepare it, and can prescribe medicine to increase appetite.

Late-stage mesothelioma can lead to pain that requires use of potent pain relievers such as morphine, which hospice can prescribe without a hospital visit. This leads to less hospitalizations, better pain control and higher quality of life. Morphine is particularly effective at calming breathing difficulties such as shortness of breath and chest pain. Hospice also offers other pain relievers aside from morphine and hospice nurses are skilled at reviewing a patient’s medication list to avoid drug interactions.

Social, spiritual and emotional support is also available through hospice to patients and their loved ones. Patients and caregivers can benefit from support groups and mental health counseling provided by hospice. Nondenominational spiritual counseling is also available. Support groups, counseling and bereavement services are available to family members for a year after their loved one passes away.

Finding Hospice Care
Hospice is available to anyone diagnosed with a terminal disease with a prognosis of six months or less.

To enter hospice a referral is not required from the patient’s primary physician. A referral or order from the primary care physician does support the six-month prognosis. This referral is often provided by the mesothelioma patient’s oncologist. Often, patients or their loved ones need to speak up about hospice because many oncologists are reluctant to mention it for fear of upsetting a patient and their family.

However, electing hospice doesn’t mean you’ve given up. Rather, hospice is associated with longer life because palliative care can maintain or improve overall health and make health obstacles easier to overcome.

A 2010 study of lung cancer patients at Massachusetts General Hospital reported 25 percent longer life among those who received palliative care like that offered by hospice.
Most people receive hospice care at home. Hospice care is also available in hospitals and through hospice in-patient facilities, which resemble a skilled-nursing facility.

Insurance, Medicare and Medicaid all offer coverage for hospice care. Patients may be responsible for the cost of prescription medications that are not for symptom management of the terminal illness the patient was accepted into hospice or for medications for illness that do not support or contribute to the prognosis of six months or less.

To find a hospice provider near you, visit

Author bio: Michelle Whitmer has been a medical writer and editor for Pleural Mesothelioma Center since 2008. Focused on the benefits of integrative medicine for cancer patients, Michelle is a certified yoga instructor, member of the Academy of Integrative Health & Medicine and graduated from Rollins College in Florida.

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