Living Wills and Healthcare Proxies

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Living Wills and Health Care Proxies

Providing your loved ones with answers to tough questions.

Introduction

It is essential to put in place the basic guidelines as to how you want to be cared for in the event of a medical emergency. The approach discussed in this article is more comprehensive than what is provided in many of the commercial forms you can purchase in office supply stores. Often the commercial forms are limited to simply withholding life support in the event of a terminal illness. There is a broad range of health care and related medical issues that should be addressed. This article will explain them and the forms through which you can communicate your wishes. Most importantly, the forms must address your personal needs, not simply the withhold life support approach, which is too often taken. Your personal preferences, religious concerns, family and other personal relationships should all be considered. This article will tell you how this can be done in a simple and practical manner.

Importance of Living Wills

Your financial and estate planning can be jeopardized where your last months or years are spent in agony or without the minimal quality of life you desire and where the resulting large health care bills deplete your estate.

The personal risk presented, if you don't address living will issues now, is that when the time comes to make these difficult decisions, you may not have the mental capacity to do so. The result may be that doctors, courts, or others may, in spite of trying to ascertain and fulfill your wishes, take steps that are the opposite of what you would want. This concern is addressed by your signing a living will (a statement of your wishes for health care) and a health care proxy (a durable power of attorney appointing an agent with the authority to make medical directives for you). These decisions are difficult and will require the consideration of a host of potential problems. However, the alternative is not communicating your wishes on these major life and death decisions and thus abrogating them to a court or hospital medical ethics committee.

OBSERVATION Do you really need to sign a living will? Yes. Even if you are concerned that a living will violates your religious preferences, you still need a living will. In fact, your special concerns are reasons that it is even more important for you to sign a living will than it is for the average person. The typical person has no interest in religious restrictions or customs being considered and simply wants no heroic measures. When your wishes differ, it is even more important that you communicate them. A living will is the way to do it.

PLANNING TIP Are you still finding it hard to address living will issues? You need a document to address the making of health care decisions in the event you end up in a hospital and can't make your own decisions. By law every hospital must give you a living will form. Can you picture yourself being wheeled down the hospital corridor. "Quick, quick, give him a form." "Sign here, sign here!". That's not the time to make the important and very personal decisions required in a living will. You want to make these decisions, however hard, in advance.

What's the Difference Between a Living Will and a Health Care Proxy?

A living will is a statement of your health care wishes. A health care proxy is a durable power of attorney for medical matters. The focus of the health care proxy is for you to appoint someone as your agent to make health care decisions. Some states will not recognize a living will, while others may. The approach taken in this article is for you to consider both a living will and a separate health care proxy and have each of them witnessed and notarized separately.

A health care proxy (power of attorney for medical directives), is essential because it provides a mechanism for decisions to be made when and where the need arises. It is impossible to foresee every possible future illness or every possible treatment your doctors may prescribe. By appointing a person to act in your behalf, these decisions can be made based on your condition at that time, the available medical procedures and advice, and your wishes. The decision as to whom to appoint can be very difficult. Many loved ones, however sensitive to your feelings, may simply not be able to make the very difficult decisions that might become necessary. Also, review your state's health care statutes (laws) at your local library for any requirements that your state may impose on health care agents.

What Personal Decisions Must You Make To Complete a Living Will?

There are a host of very personal and often difficult decisions you must make to complete a living will.

Who Can Serve as Agent?

Who do you name as an agent? If you have two children, do you name both? Do you name one or the other? The safest approach is never to require joint action by two or more people to make a decision. Some state laws may prohibit this as well. If you wish to name two people, modify the language in the living will forms to give both the authority to act independently and merely suggest that they consult with each other, but not to require joint action.

EXAMPLE "I appoint my two children, Tom Smith and Jane Smith, as my agents. Each may act independently with no requirement for joint action. It is my non-binding request that if and when it is feasible they endeavor to consult with each other before taking any action. Health care providers may rely on either's decision." If you are to name children, a more important issue is can they bear this responsibility? Rarely is it advisable to name a child under say age twenty-five to handle this difficult decision of withholding life support from Mom.

Religious Preferences or Lack of Religious Preferences Should be Specified

Whether or not you have any religious convictions, your living will should communicate your wishes. If you were born to parents with a particular religious affiliation, other members of your family could assume that it would be appropriate to consult with clergy of your religious background before making a decision. Religiously influenced decisions could differ from the types of decisions you may prefer. For example, several religions restrict the ability to withhold life support. If you want the life support withheld, it is important to communicate that you don't want religious restrictions to apply.

On the other hand, if your religious convictions are important to you, you should specify them in detail in the forms. Failing to do so could result in your wishes being overlooked. For example, if you are Catholic and wish to have last rites, state this in your living will. If family members cannot be reached in time, it may be too late.

Religious doctrines may have a very specific effect on what can be done medically to sustain or not sustain life. However you presently feel about the effects the tenets of your faith may have on these decisions, it can be a terrible mistake not to address these issues with your clergy. Your family's religious convictions should be considered. It may be possible to carry out your wishes with perhaps only modifications and yet be within the religious tenets of your faith.

If you decide, after consulting with your clergy and discussions with your family, that you wish to take a position contrary to the tenets of your faith, your living will should say so. However, if you decide you wish to adhere to the tenets of your faith, it is just as important to state this as well. When doing so, you should be very precise in your description of the religious doctrines to which you adhere. Further, it is strongly recommended that you provide the name and address of a clergy member to be consulted for interpretations of your religious beliefs and the name of a religious organization or institution to be contacted should the clergy member not be available.

WARNING You may prefer to modify the language in the sample form in this book to conform to your religious observances rather than using a form completed by your religious organization. Many of the forms prepared by religious organizations focus almost exclusively on religious issues, but don't address various legal and other issues addressed in the forms in this book.

Quality of Life Statements

Your living will may be the only written evidence of what your deepest personal wishes are. Therefore, it should as clearly and as precisely as possible state your feelings and wishes about health care, treatment, quality of life, and whether you may wish to refuse or accept medical treatment. Many living wills contain a concept that if there is no quality of life, no heroic measures should be taken to prolong your life. No quality of life might mean that you are not able to communicate to the outside world, and it is not anticipated that you ever will. To another person, only severe and ongoing pain that cannot be abated would negate quality of life sufficiently to warrant withholding life support. You should analyze your own feelings about quality of life. If this concept is important to your determination as to whether life support should be halted, be sure to modify the document accordingly in order to reflect your wishes. Because the use of proper medical language is so important, try to discuss your thoughts with your doctor to clarify the correct terminology.

Anatomical Gifts (Organ Donations)

Organ donation is a vital step in helping save the lives of others. Seriously and carefully give thought to permitting organ donations. The forms in this book include a clause permitting the agent to authorize a donation. If you do not wish to permit organ donations to apply, cross out this paragraph and initial the cross out on the photocopy form you will be signing.

Burial Instructions

While you can and should note detailed burial instructions, these should also be in your letter of instruction

Nutrition and Hydration

You should specifically state whether you would want artificial nutrition and hydration. If you don't want artificial feeding even if discontinuing it could hasten death, this should be specifically stated. Many states will not permit the cessation of nutrition or hydration unless the form specifically authorizes it. Many religions prohibit it. The forms in this book permit the withdrawal of nutrition and hydration based on the same criteria as withholding heroic medical efforts. In some states you must separately sign this clause.

Pain Relief

What about pain medication and other treatments or procedures to reduce pain? Should they be administered even if they hasten death?

Heroic Measures

Should mechanical means of prolonging life be used? One difficulty is that it is impossible to know which treatments will be appropriate, necessary, or available. How do you define heroic? What is heroic in one situation may not be heroic in another. Some forms get quite specific, giving you a complex grid of boxes to check off the types of medical procedures you want or don't want, based on various hypothetical scenarios. But what happens if your scenario is a little different from what's in the boxes? Now what do they do? It could be worse than having a general form for guidance.

What if You Want Every Heroic Measure Taken?

With so much press and attention given to the right to die, euthanasia, declination of medical procedures, and related issues, one very important fact has been obscured. Whether for religious or personal reasons some people want every medically reasonable method, heroic or not, performed in some circumstances. If you want every life saving procedure and extraordinary measure (cardiac resuscitation, mechanical respiration, nutrition, hydration) performed, specify it in your living will and specify under what conditions. You should make your wishes known. You have as much right to request the full range of medical treatment as you do to request that medical treatment be withheld.

Arranging for Funerals

If you wish any specific eulogy, service, or steps taken, specify it in your living will. If you want a traditional religious ceremony, specify it. You can also specify that religious restrictions do not apply, but that burial should be in accordance with a particular religion's traditions. You may wish to specify cremation and interment instead of burial.

What To Do With Your Signed Living Will Forms

The logically correct thing to do is to discuss the form with your doctor and when it is signed give a copy to your doctor. Most people don't discuss their living will with their doctors and don't give them a copy. This is a big mistake. If you're hospitalized, it becomes a part of your medical records. Keep a copy at home. Do not put it in the safe-deposit box. Keep it on top of the refrigerator or other accessible place. Make sure at least one of your agents has one copy.

Summary

A living will and health care proxy should be an ingredient in every estate and personal plan. Discuss your feelings with all the people likely to be involved with your care: spouse or partner, immediate family, doctors, and clergy. The very process of discussing your feelings with these people is perhaps as important as actually signing the documents. It will help you crystallize your wishes, inform those people who will be involved in carrying out your wishes during your incapacity, and help you determine whether they are really able to handle the responsibility.

ESTATE PLANNING STEP-BY-STEP by Martin M. Shenkman, CPA, M.B.A., J.D. Copyright ) 1997 by Martin M. Shenkman. Published by arrangement with Barron's Educational Series, Inc.

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