Amy & Dan Smith's Planning For Life: Do Not Resuscitate Order ("DNR")

The DNR is a written order issued by a physician to withhold cardiopulmonary resuscitation for the patient in the event of cardiac or respiratory arrest. The DNR is now referred to officially as a “Durable Do Not Resuscitate Order.” The term “Durable” simply means that the order remains applicable even if the patient is for any reason incapable of making an informed decision.

A DNR is not an Advance Directive. Except in the case of certain optional, rarely used provisions of an Advance Directive which require a physician’s signature, the Advance Directive is not signed by a physician. Rather, it is signed by the patient and two witnesses. In certain cases the Advance Directive can be oral. In contrast, a DNR cannot be oral and must be signed by the doctor. (A provision of the Virginia Code appears to allow an oral DNR by the patient, but a recent opinion from the Virginia Attorney General’s office declares that the Virginia Code does not create a verbal DNR.) While the DNR must be written, it can be revoked by the patient verbally.

A doctor may issue a DNR only for a patient with whom the doctor has a bona fide physician/patient relationship and only, of course, with the consent of the patient. Note, however, that consent to a DNR may be given by the agent of the patient pursuant to an Advance Directive. Recall that for an agent to be empowered to act under an Advance Directive, the patient must be determined by two medical caregivers to be “incapable of making an informed decision.” Only after such a determination has been made may the agent request, or consent to, a DNR from the patient’s doctor.

The authority to consent to a DNR can create a dilemma for the agent under an Advance Directive. Consider, for example, the situation where a patient remains conversant and apparently cognizant but whom the doctors have certified to be incapable of making an informed decision. The medical caregivers come to you suggesting the advisability of a DNR while citing the pain and discomfort of the patient, an incurable and deteriorating condition, and, if cardiac or respiratory arrest occurs, the prospect of an indefinite vegetative state if resuscitation is successful. Add to these facts that the patient purposely did not seek a DNR while competent and, even now in his diminished capacity, resists the idea of a DNR when it is suggested. The foregoing facts are from an actual case and are not unusual, especially for elderly patients.

An agent who consents to a DNR under an Advance Directive may revoke that DNR. However, an agent under an Advance Directive cannot revoke a written DNR that was issued upon the request of the patient himself/herself.

The DNR should be readily accessible to emergency medical services personnel. Some folks post a copy on their refrigerator. Family should be advised of your DNR, and doctors, in addition to your primary care doctor, should note the existence of your DNR in your medical files.

While an Advance Directive is highly recommended and is usually prepared by the attorney in conjunction with other estate planning documents, the DNR is an entirely separate matter. It is issued, if at all, by the patient’s physician. It is a personal decision to be weighed carefully after consultation with your physician.

From Amy and Dan Smith's Planning for Life column appearing monthly in the Blue Ridge Leader, Loudoun County, VA.

The foregoing article contains general legal information only and is not intended to convey legal advice. For legal advice regarding estate planning, the reader should contact his/her lawyer.

Daniel D.  Smith is a partner in the law firm of Smith & Pugh, PLC, 161 Fort Evans Road, NE, Suite 345, Leesburg, VA 20176 (703-777-6084, www.smithpugh.com).

Amy V. Smith Wealth Management, LLC is an independent firm. Amy V. Smith, CFP, CIMA offers securities through Raymond James Financial Services, Inc., member FINRA/SIPC. Her office is located at 161 Fort Evans Road, NE, Suite 345, Leesburg, VA 20176. (Tel. 703-669-5022, www.amysmithwealthmanagement.com.) Any opinions are those of Amy and Dan Smith and not necessarily those of Raymond James. Raymond James does not guarantee that the foregoing material is accurate or complete and does not provide legal advice. Dan Smith is not affiliated with Raymond James.