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The Basic Necessities of a Living Will: A How-To Guide Basic Necessities Of A Living WillMany pundits believe everyone should have a Living Will. But if not done correctly it will not be the document people think it is. As a threshold goal, most people should have a Health Care Power of Attorney (or Health Care Proxy) that names a trusted person as agent or proxy. A still better alternative is to execute both documents and a single, combined "Advance Directive" that names a proxy and provides guidance about one's wishes. Unfortunately, because of statutory restrictions or inconsistencies within state law, many practicing attorneys advise clients to execute separate rather than combined documents. State advance directive laws are slowly moving toward acceptance of flexible, combined advance directives, but the states differ significantly in this regard. The reason for the primary importance of the proxy appointment is simple. Most standardized living will forms are quite limited in what they can accomplish and what conditions they cover. For example, most provide instructions that apply only if the individual is in a terminal condition or permanently unconscious, yet the majority of health care decisions that need to be made for patients lacking capacity concern questions about day-to-day care, placement options, and treatment options short of just simply giving up. Moreover, most boilerplate instructions express fairly general sentiments about not wanting treatments that serve only prolong the dying process. Relatively few people disagree with this sentiment. However, applying it to a particular set of facts is more difficult than at first meets the eye. Virtually no interventions only prolong the dying process. Any intervention can produce multiple consequences, some predictable, some not so predictable. If an aggressive and possibly painful course of treatment will give the patient a 1 in 3 chance of recovering to the point of being able to converse again with loved ones for a least a few more months, is that hope enough to treat aggressively? What if the odds were 1 in 25? Living will instructions always need interpretation, even when the terminal nature of an illness is clear. An agent or proxy under a health care power of attorney can do precisely that. The proxy, who should know the patient's values intimately, can respond to the actual facts and variables known when an actual health care decision needs to be made. Short of possessing a crystal ball, no one can anticipate the specific and often complicated circumstances fate will place them in. The proxy acts not only as legal decision maker, but also as spokesperson, analyzer, interpreter, and advocate. One caveat: if there is no one close to the individual whom he or she trusts to act as health proxy, then the health care power of attorney should not be used. In this circumstance, the Living Will is safer, despite its limitations. Written Advance Directives Are Not Legal in Every State: False. Every state recognizes both the proxy and living will type advance directives, although the laws of each state vary considerably in terminology, the scope of decision-making addressed, restrictions, and the formalities required for making an advance directive. A more frequently raised question is whether an advance directive written in one state will be recognized in other states. In other words, is the directive portable across state lines. Many states expressly recognize out-of-state advance directives if the directive meets either the legal requirements of the state where executed or the state where the treatment decision arises. Several states are silent on this question. If there is doubt, the rules of the state where treatment takes place, not the state where the advance directive was signed, will normally control. However, even if an advance directive fails to meet technicalities of state law, health providers still should value the directive as important, if not controlling, evidence of the patient's wishes. The threshold problem with most state provisions addressing portability is that they presumably require providers to be fully knowledgeable of the other state's law. Most use language derived from the Uniform Probate Code and similar to the following provision included in the now defunct Uniform Rights of the Terminally Ill Act: A declaration executed in another state in compliance with the law of that state or of this State is validly executed for purposes of this [Act]. Colorado and Utah offer a more user-friendly approach to recognizing out-of state directives: Unless otherwise provided therein, any medical power of attorney or similar instrument executed in another state shall be presumed to comply with the provisions of this [Act] and may, in good faith, be relied upon by a health care provider or health care facility in this state. Thus, in these, states providers may assume that the out-of-state directive is valid unless they have actual knowledge to the contrary. Back To Mature Market News → Go To The GenerationTarget.com Mature Market Bookstore → |
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