Living Wills have been a hot topic in our world lately thanks in large part to the recent court battles over Terri Schiavo and her care. While you have undoubtedly heard the name and about Living Wills, this article will attempt to provide more information on what a Living Will is and also explain the importance of having a Living Will. While the Schiavo matter will serve as an example, it is not the intent of this article to advocate any political or legal position in regard to that court case.
What is a living will?
A Living Will is not really a will at all or a Living Trust that many people have also heard of. A Living Will is a separate legal document which sets out your wishes about what extended medical treatment should be withheld or provided if you become unable to communicate those wishes. The directive creates a contract with the attending doctor. Once the doctor receives a properly signed and witnessed directive, he or she is under a duty either to honor its instructions or to make sure you are transferred to the care of another doctor who will.
Many people mistakenly believe that Living Wills or healthcare directives are used only to instruct doctors to withhold life prolonging treatments. In fact, some people want to reinforce that they would like to receive all medical treatment that is available — and a healthcare directive is the proper place to say so.
What is a Healthcare Power of Attorney?
A second document that is often used with a Living Will is a Health Care Power of Attorney. A Healthcare Power of Attorney gives another person authority to make medical decisions for you if you are unable to make them for yourself. Unlike a Living Will, this document doesn’t necessarily state what type of treatment you want to receive. You can leave those decisions to your proxy if you feel comfortable doing so. Ideally, however, the two documents will work together. For example, your healthcare directive may contain a clause appointing an attorney-in-fact to be certain your wishes are carried out as you’ve directed. Or you may create two separate documents, a directive explaining the treatment you wish to receive and a durable power of attorney appointing someone to oversee your directive.
Why should I have a Living Will and Healthcare Power of Attorney?
One needs to look no further than the Terri Schiavo case to see why you should have a Living Will and Healthcare Power of Attorney. The problem in the Schiavo case wasn’t who was morally right about the issue; the problem was that neither document, a Living Will or Healthcare Power of Attorney existed. As such, you had to different groups who both believed they were not only doing what Ms. Schiavo would have wanted, but also what they thought was morally right. This lead to a court battle that lasted over thirteen years, cost all parties tremendous amounts of time and money, and caused conflict between family members. While I know I do not know what Ms. Schiavo wanted in regards to her health care, I am fairly certain that she did not wish for this type of court battle to ensue. These type of battles can be avoided if the appropriate care and foresight are used to prepare the formal documents to express your wishes for your healthcare.
What happens if I don’t have any healthcare documents?
If you have not completed either a formal document such as a healthcare directive to express your wishes, or a durable power of attorney to appoint someone to make healthcare decisions on your behalf, the doctors who attend you will use their own discretion in deciding what kind of medical care you will receive.
When a question arises about whether surgery or some other serious procedure is authorized, doctors may turn for consent to a close relative — spouse, parent or adult child. Friends and unmarried partners, although they may be most familiar with your wishes for your medical treatment, are rarely consulted, or are purposefully left out of the decision-making process. As the Schiavo case shows us, this can often result in the long court battles people try to avoid.
When does my healthcare directive take effect?
Your healthcare directive becomes effective when three things happen:
- You are diagnosed to be close to death from a terminal condition or to be permanently comatose
- You cannot communicate your own wishes for your medical care — orally, in writing or through gestures, and
- The medical personnel attending you are notified of your written directions for your medical care.
In most instances, you can ensure that your directive becomes part of your medical record when you are admitted to a hospital or other care facility. But to ensure that your wishes will be followed if your need for care arises unexpectedly or while you are out of your home state or country, it is best to give copies of your completed documents to several people, including your regular physician, your healthcare proxy and another trusted friend.
Who should I choose as a healthcare proxy?
The person you name as your healthcare proxy should be someone you trust — and someone with whom you feel confident discussing your wishes. While your proxy need not agree with your wishes for your medical care, you should believe that he or she respects your right to get the kind of medical care you want.
The person you appoint to oversee your healthcare wishes could be a spouse or partner, relative or close friend. Keep in mind that your proxy may have to fight to assert your wishes in the face of a stubborn medical establishment — and against the wishes of family members who may be driven by their own beliefs and interests, rather than yours. If you foresee the possibility of a conflict in enforcing your wishes, be sure to choose a proxy who is strong-willed and assertive.
While you need not name someone who lives in the same state as you do, proximity should be one factor you consider. The reality is that the person you name may be called upon to spend weeks or months near your bedside, making sure medical personnel abide by your wishes for your healthcare.
There are many more issues related to Living Wills and Health Care Powers of Attorney than those addressed in this article. If you have further questions please contact our office.