Many seniors are wary of some of the proposed changes in health care benefits that may result from “reform,” such as rationing. But few are aware of the potential for abuse that might occur by using a new form, the Physician Orders for Life-Sustaining Treatment (POLST). Efforts to expand the acceptability of this new form (available in California only since 01-01-09) are so well-funded that much excitement has been generated about how the form might reach patients in nursing homes for whom it is too late to create Advance Directives since they no longer possess the mental ability to make end-of-life medical treatment decisions. Thus many state laws, including California, allow a legally recognized representative to sign a POLST on behalf of a patient. In contrast, a person who still is competent can (and I believe should) create an Advance Directive (Living Will and Proxy Directive) that legally designates a specific representative.

What is the difference between a legally recognized, and a legally designated representative?

The legally recognized representative and the legally designated representative could be the same person but a significant difference is also possible. Many legally recognized representatives derive their authority from being “next of kin.” Often, next of kin will inherit whatever remains in the financial estate after the cost of long-term care. Some next of kin bear the burdensome responsibility of providing direct care. Thus there could be a significant conflict of interest if a legally recognized representative wishes to preserve the inheritance and receive its proceeds sooner. Caregivers commonly experience stress and depression from a task that is so demanding in terms of time and energy that the caregivers cannot enjoy their own children or pursue their own interests or careers. Consciously or unconsciously, therefore, some legally recognized representatives may make end-of-life decisions based on their own needs instead of basing them on the patient’s best interests.


In contrast, agents/proxies are legally designated by patients while they are competent, using appropriate forms and witnessed by qualified individuals. (Several states, including California, require an extra level of oversight by independent ombudsmen, for patients who reside in skilled nursing facilities.) According to the law, proxies must facilitate the honoring of patients’ Known Wishes (if available). If the patient’s future condition is not exactly as the patient previously