Living Wills: What You Need To Know Now

The Importance of Advance Directives

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By Attorney Patti Spencer
Special to THELAW.TV

The question of when to withhold or terminate life support for an unconscious or terminally ill individual is one that is hotly debated. There are a host of medical, ethical, religious, and legal issues. Before legislation was passed, these decisions were usually made by family members in conjunction with physicians and, if disputes arose, the issue was ultimately brought to the courts. You may remember the Cruzan case in Missouri, where the court held that a permanently unconscious patient could refuse medical treatment, but her wishes had to be expressed by clear and convincing evidence before the onset of the unconsciousness.

Since it became of crucial importance that a person set forth their wishes about so-called "heroic measures," it became the common practice for a person to make a "Living Will." A "Living Will" is a document in which you express your wishes about medical treatment in the event that you are unable to make decisions about your own care. The Living Will specifies the medical treatments you wish to accept or refuse and the circumstances under which your wishes will be carried out.

Many people make the mistake of thinking that a Living Will gives the order to "pull the plug." While some people want that and include it in their Living Will, a Living Will can contain any instructions, including using all life-saving and life-supporting measures possible. A Living Will can be personalized and gives you the opportunity to say what you want.

If you've been admitted to the hospital in the last 10 years, and you may qualify for Medicare or Medicaid benefits, you know that you will be asked if you have a Living Will. You will be asked to provide a copy of it, and if you don't have one, one will be offered to you. You do not have to sign one in order to be admitted, but information about a Living Will and the opportunity to sign one must be provided to you. (This is required by the Patient Self-Determination Act of 1990, a federal law passed by Congress.)

Each state has varying legislative action. For example, Pennsylvania law refers to a Living Will as an "Advance Directive for Health Care." Aspects of this directive include definitions of "terminal conditions" and "permanently unconscious." Make sure to familiarize yourself with your state's legislation.

The declarant's physician must make the directive a part of the declarant's medical record. Once the declaration is operative because the attending physician has determined the patient to be incompetent, in a terminal condition, or in a state of permanent unconsciousness, the medical provider must either comply with its directions or make every reasonable effort for the transfer of the patient to another provider who will comply with the directive.

It is very helpful to family members for the declarant to name a surrogate to make decisions. The surrogate is similar to the Attorney-in-Fact you would appoint in a Power of Attorney for financial matters; you may appoint one person only, one person backed up by a successor, or two surrogates who must agree. Whatever option you go with, you will want to be sure that the surrogate understands your wishes, is willing to take on the responsibility, and is ethically and emotionally prepared to carry out your directive. Fairly recent technological advances now allow for prolongation of life far beyond what was "normal" in the past; controversial areas are addressed in this sort of document, and it is critical for you to name as your surrogate an individual who agrees with your directions.

Generally speaking, a person names a relative, close friend, or religious advisor as the surrogate and sees to it that the person has a copy of the Advance Directive. It is also important to give your Advance Directive to your physician and to family members and friends, as you deem appropriate.

An Advance Directive is legally binding. But, when you sign it, you need not feel you are making irrevocable choices. While it is important to think through the decisions called for and then to execute the document, you can make revisions or even revoke the Advance Directive at any time. No judgment is called for regarding your mental or physical condition at the time of revocation. You can implement these changes in writing, orally, or even by an action such as a wink or a shake of the head that says "No way!" Your revisions or revocation is effective upon communication to a witness, the attending physician, or another health care provider.

What is the process for preparing a Health Care Directive? Many attorneys prepare Advance Directives at the same time they prepare wills and Powers of Attorney. Don't hesitate to continue the conversation with us via Twitter @PattiSpencer.

The author, Patti Spencer, is a Lancaster, Pennsylvania trusts, estates and tax attorney at Spencer Law Firm LLC.

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