POLST: Honoring Wishes at the End of Life

POLST: Honoring Wishes at the End of Life

By Wendy M. Greenberg, Esq1

The Problem

Mildred is your 86 year-old client with advanced dementia.  When she was initially diagnosed with dementia you were careful to draft an Advance Health Care Directive that clearly stated her wishes not to receive CPR or to be placed on a breathing machine, and to have her care focused on her comfort.  Last night she developed a severe pneumonia was transferred from the nursing home where she lives to a local hospital.  The physicians in the emergency room, not having access to her Advance Directive and not knowing that her primary care physician wrote a Do Not Resuscitate (DNR) order at the nursing home, intubated her and placed her on a breathing machine.  She died 6 hours later after an unsuccessful resuscitation attempt.  Her family is furious that she received these aggressive interventions, as her wishes were clearly documented in her Advance Directive.  

A Solution

This case highlights one important inadequacy in the care of seriously ill patients: the inability of a fragmented health care system to document and honor end-of-life preferences across different care sites.  Advance Directives are often not available in times of crises, and commonly include vague instructions that make it difficult for health care providers to know when and how to act on the expressed preferences.  A solution for California may come as a result of California Assembly Bill AB 3000.  Signed by Governor Schwarzenegger on August 4, 2008, and effective as of January 1, 2009, AB 3000 added to the California Probate Code recognition of Physician Orders for Life-Sustaining Treatment ("POLST") (California Probate Code Section 4781.2).

POLST originally started in Oregon in 1991.  Through the efforts of a National POLST Paradigm Initiative Task Force, many states throughout the country are now developing their own POLST programs. The POLST program consists of a coordinated system for eliciting, documenting, and communicating life-sustaining treatment wishes of seriously ill patients.  The heart of this program is the POLST form, which includes medical orders signed by both a physician and the patient.  These orders instruct health care professionals of the patient's wishes regarding medical treatment and become part of the patient's medical record.  The POLST form is designed to be easily recognizable by health care providers (it is to be printed on brightly colored paper and kept at the front of the patient's chart) and totally portable, as part of the patient's medical record, between care facilities. 

The California form has three sections for the physician to document the patient's wishes: Cardiopulmonary Resuscitation (CPR), Medical Interventions, and Artificially Administered Nutrition.  The patient may specify whether CPR should be performed, and in not quite so immediately dire circumstances, the level of medical intervention he or she wants: "comfort measures only," "limited additional interventions," or "full treatment."  Patients may further indicate whether nutrition may be supplied by tube, and for how long.  By comparison, traditional DNR order covers only resuscitation measures.

When is a POLST necessary (particularly in addition to or instead of an Advance Health Care Directive)?

A POLST form is not an Advance Health Care Directive, and it does not include the appointment of an agent to speak on behalf of the patient.  The goal of the POLST form is to provide a specific set of immediately active medical orders, determined by the physician and patient with reference to the patient's current medical condition.  Thus, the POLST form is best suited for those who are already seriously ill, allowing the avoidance of delay in decisions regarding treatment by providing the patient's wishes without the process of locating and consulting an Advance Directive agent.  Because a POLST form must be completed with the assistance of a health care professional (a physician, social worker or nurse) and signed by a physician, it also allows the patient to start a dialogue with his or her physician about important end of life choices. 


There are several things to keep in mind when recommending the completion of a POLST.  First, if an emergency service responder is not made immediately aware of the existence of a POLST form, the responder may perform treatments against the wishes of the patient.  Executing a DNR order and wearing a "Do Not Resuscitate - EMS" medallion will prevent this occurrence.  Second, a POLST form will override previous instructions, including an existing Advance Directive if there is a discrepancy between the two.  Finally, it is important to note that a patient's appointed agent may modify a POLST while the patient is incapacitated.


POLST forms appear to be effective; a recent study published in 2010 by the Journal of the American Geriatrics Society found that nursing home residents with POLST forms were significantly less likely to receive unwanted life sustaining treatments when compared with those with traditional medical orders.California POLST forms may be obtained in various languages at www.capolst.org, and should be seriously considered, in addition to Advance Health Care Directives, for clients with advanced medical conditions.

Morrison & Foerster's Trusts and Estates group provides sophisticated planning and administration services to a broad variety of clients.  If you would like additional information or assistance, please contact Patrick McCabe at (415) 268-6926 or PMcCabe@mofo.com.

© Copyright 2010 Morrison & Foerster LLP.  This article is published with permission of Morrison & Foerster LLP.  Further duplication without the permission of Morrison & Foerster LLP is prohibited.  All rights reserved.  The views expressed in this article are those of the authors only, are intended to be general in nature, and are not attributable to Morrison & Foerster LLP or any of its clients.  The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.


[1] The author wishes to acknowledge the contributions of Erin Lubniewski and Eric Widera, M.D.

[2] Bernard J. Hammes, PhD, Brenda L. Rooney, PhD, MPH, and Jacob D. Gundrum, MS 2010, July; Volume 58, Issue 7: 1249-1255

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