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Understanding Medical Directives and Living Wills
March 24, 2005 The tragic case of Terri Shiavo
has created increased attention on the subject of Medical Directives
or Living Wills, which give detailed instructions regarding the kind
of care one would like to receive should they become terminally ill or
permanently unconscious and are unable to make their own medical
decisions. The following is a precise presentation about these legal
instruments as presented by ElderLawAnswers.com.
Medical Directives
By:
ElderLawAnswers.com
Last updated: Sep 7, 2003
The Health Care Proxy
Appointing an Agent
Medical Directives
Living Wills
Introduction
Just as we create estate plans for our eventual
demise, we also need to plan ahead for the possibility that we will
become sick and unable to make our own medical decisions. Medical
science has created many miracles, among them the technology to keep
patients alive longer, sometimes indefinitely. As a result of many
well-publicized "right to die" cases, states have made it possible for
individuals to give detailed instructions regarding the kind of care
they would like to receive should they become terminally ill or are in a
permanently unconscious state. These instructions fall under the general
category of "health care decision-making." Depending on the state in
which you live, this may take the form of a health care proxy, a medical
directive, or a living will.
The Health Care
Proxy
If an individual becomes incapacitated, it is
important that someone have the legal authority to communicate that
person's wishes concerning medical treatment. Similar to a power of
attorney, a health care proxy allows an individual to appoint someone
else to act as their agent, but for medical, as opposed to financial,
decisions. The health care proxy is a document executed by a competent
person (the principal) giving another person (the agent) the authority
to make health care decisions for the principal if he or she is unable
to communicate such decisions. By executing a health care proxy,
principals ensure that the instructions that they have given their agent
will be carried out. A health care proxy is especially important to have
if an individual and family members may disagree about treatment.
In general, a health care proxy takes effect only
when the principal requires medical treatment and a physician determines
that the principal is unable to communicate his or her wishes concerning
treatment. How this works exactly can depend on the laws of the
particular state and the terms of the health care proxy itself. If the
principal later becomes able to express his or her own wishes, he or she
will be listened to and the health care proxy will have no effect.
Appointing an
Agent
Since the agent will have the authority to make
medical decisions in the event the principal is unable to make such
decisions for him- or herself, the agent should be a family member or
friend that the principal trusts to follow his or her instructions.
Before executing a health care proxy, the principal should talk to the
person whom he or she wants to name as the agent about the principal's
wishes concerning medical decisions, especially life-sustaining
treatment.
Once the health care proxy is drawn up, the agent
should keep the original document. The principal should have a copy and
the principal's physician should keep a copy with that individual's
medical records.
Those interested in drawing up a health care proxy
document should contact an attorney who is skilled and experienced in
elder law matters. Many hospitals and nursing homes also provide forms,
as do some public agencies.
Medical Directives
Accompanying a health care proxy should be a
medical directive. Such directives provide the agent with instructions
on what type of care the principal would like. A medical directive can
be included in the health care proxy or it can be a separate document.
It may contain directions to refuse or remove life support in the event
the principal is in a coma or a vegetative state, or it may provide
instructions to use all efforts to keep the principal alive, no matter
what the circumstances. Medical directives can also be broader
statements granting general authority for all medical decisions that are
important to the principal. These broader medical directives give the
agent guidance in less serious situations.
Living Wills
Living wills are documents that give instructions
regarding treatment if the individual becomes terminally ill or is in a
persistent vegetative state and is unable to communicate his or her own
instructions. The living will states under what conditions
life-sustaining treatment should be terminated. If an individual would
like to avoid life-sustaining treatment when it would be hopeless, he or
she needs to draw up a living will. Like a health care proxy, a living
will takes effect only upon a person's incapacity. Also, a living will
is not set in stone; an individual can always revoke it at a later date
if he or she wishes to do so.
A living will, however, is not necessarily a
substitute for a health care proxy or broader medical directive. It
simply dictates the withdrawal of life support in instances of terminal
illness, coma or a vegetative state.
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