As you know, I limit my practice to E-Commerce and Internet Law. Why then am I writing this blog about advanced health care directives? Simply because every lawyer has a responsibility to perform services for the public good at no cost. As I never want to give away my services in my chosen field, and as I have a mother of advanced age, I chose this field to offer my “pro bono” services. I volunteer at a local hospice care center to offer this same advice to families and patients who are at a very vulnerable moment in their lives. Therefore, please consider using this blog’s advice to create your advance health care directives before your family is in this vulnerable situation.
State Laws control the form of the documents discussed below and they are sometimes called by different names. Most states have their standard acceptable forms online for you to download and fill in the blanks. These online forms also offer definitions and advice when you are filling in the forms. Finally, the forms will need to be notarized.
Living Wills
The purpose of a Living Will Declaration is to document your wish that life-sustaining treatment, including artificially or technologically supplied nutrition and hydration, be withheld or withdrawn if you are unable to make informed medical decisions and you are in a terminal condition or in a permanently unconscious state. This Living Will Declaration does not affect the responsibility of health care personnel to provide comfort care to you. Comfort care means any measure taken to diminish pain or discomfort, but not to postpone death. If you would not choose to limit any or all forms of life-sustaining treatment, including CPR, you have the legal right to so choose. A Living Will Declaration is applicable only to individuals in a terminal condition or a permanently unconscious state. If you wish to direct medical treatment in other circumstances, you should prepare a Health Care Power of Attorney. If you are in a terminal condition or a permanently unconscious state, this Living Will Declaration controls over a Health Care Power of Attorney.
Health Care Power of Attorney
The Health Care Power of Attorney allows you to appoint someone you trust — for example, a family member or close friend – to make health care decisions for you if you lose the ability to make decisions yourself. By appointing a health care agent, you can make sure that health care providers follow your wishes. Your agent can also decide how your wishes apply as your medical condition changes. Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own. You may give the person you select as your health care agent as little or as much authority as you want. You may allow your agent to make all health care decisions or only certain ones. You may also give your agent instructions that he or she has to follow. This form or an attached form can also be used to document your wishes or instructions with regard to organ and/or tissue donation.
When selecting your agent, I recommend you do three things when preparing these forms:
1) Make sure the person you have selected and agreed to be your agent knows your wishes. I often suggest meeting with this person at least twice to discuss your wishes with them, and to make sure they understand what to do in any situation.
2) Further, if you are selecting someone who is out of the legal chain of command (e.g. spouse, children or guardian) I further urge you in the strongest possible terms to tell your spouse or children that you have done this. I would suggest writing a letter or email to them to tell them you have made this choice because you do not want to burden them with the hard decisions that must sometimes be made when they are in a state of keen distress or sorrow.
For instance, what if you are unconscious and the doctor wants to remove a limb. A relative would agonize over this decision, and may not do what you wish done. However, you will have discussed this situation with your agent, and they can make the decision you would have made without regard to anyone else’s wishes.
3) That is why my third recommendation is so important. Be sure to choose someone of strong moral character who will not only do as you have discussed and directed, but will not bow to the pressures of others present who think they know better. I personally have been through this process with a parent, and made the decisions they wanted. While I allowed my siblings to weigh in with their opinions, in the end it was my responsibility to look them in the eye and tell them I was doing as I was instructed to do. I had to stand up to their demands, and take the actions I was instructed to do by my parent. In the end, while this choice was hard, I had no guilt or recriminations. I did as I was asked, and never lost a moment’s peace as I knew I had made the correct decision based on my conversations with my parent.
In most States the Living Will supersedes the Health Care Power of Attorney. Why then is the Health Care Power of Attorney needed, you may ask? Because there are times when the situation at hand is not addressed in your living will. Expanding on the example I used in 2) above, suppose you have been in an automobile accident. You are in surgery and the doctor comes out and says they have done everything they can to save your limb, but now the situation is either remove the limb or you will die. Since you came into the hospital in a comma, and as you are under anesthetic, you cannot express your wishes. Living Wills don’t usually contemplate this situation, and are usually used in cases of long term sickness (e.g. cancer.) Someone needs to make this decision immediately. Since you have discussed this possibility with your Health Care Power of Attorney agent, they will know what you want done and can make the decision for you. They can make this decision as you would have made it, even in the face of opposition from family members.
DNR’s (Do Not Resuscitate Orders)
A DNR is an unique advanced directive in that you cannot make it in advance. A DNR can only be signed by your doctor after you have entered into a health care situation that is terminal (e.g. cancer.) If you are still awake and rational, you may tell your doctor to sign a DNR. If you are not rational, or in a comma, then your Health Care Power of Attorney agent can ask the doctor to sign a DNR order. This is another reason you want both a Living Will and a Health Care Power of Attorney.
If you have questions regarding Advance Directives, please contact a local attorney for guidance and advice.