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Living Wills and Powers of Attorney

Law and the Elderly


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Make tough decisions before elderly person becomes incapacitated. Does everyone need a living will? Answer Aliving will, standing alone, is not the document most people need. The first document most people should have is a Health Care Power of Attorney (or Health Care Proxy) that names a trusted person as agent, or proxy. Even better would be to have both documents, or a single document called an Advance Directive that combines the features of a living will and a Health Care Power of Attorney. The laws of some states, however, make this option inadvisable. Why is a proxy appointment more important than a living will? Answer Most living will forms are limited in what they can accomplish and what conditions they cover. Most forms, for example, provide instructions that apply only if the individual is in a terminal condition or permanently unconscious; yet most health care decisions that need to be made for someone lacking capacity concern questions about day-to-day care, placement options, and ? treatment options short of "pulling the plug." Ahealth care proxy can make that kind of decision, as well as interpret the instructions in a living will. Without a crystal ball, no one can anticipate the specific and often complicated circumstances he or she may face. The proxy acts not only as legal decision maker, but also as spokesperson, analyzer, interpreter and advocate. Is a Health Care Power of Attorney ever inappropriate? Answer If there is no one close to the individual whom he or she trusts to act as health care proxy, then the health care power of attorney should not be used. In this circumstance a living will is safer, despite its limitations. Is physician-assisted suicide legal? Answer The U.S. Supreme Court in 1997 ruled that physician-assisted suicide is not a constitutional right, and left it to the states to determine for themselves. To date, physician-assisted suicide is legal only in Oregon. Source: Sabatino, Charles P., "Ten Legal Myths About Advance Medical Directives," Clearinghouse Review, October 1994 and Source: Washington v. Glucksberg, Quill v. Vacco

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