Of Council

What You Don’t Know About
Living Wills and Beyond

by Christine Graham


While having
a living will prepared is an essential first step, it is equally important that you discuss your wishes with your family,
physician, minister
or friends

Despite the flood of information about living wills and healthcare powers of attorney generated by the Teri Schiavo case, which has highlighted these legally com-plex and emotionally charged issues, most people lack the legal guidance and information necessary to ensure that their wishes concerning medical decisions, treatment and care are followed. Unfortunately, many still do not have a living will, or healthcare power of attorney to provide guidance in the event they are unable to speak for themselves.

What’s The Difference?
The Living Will, HealthCare Directive
and Durable Power of Attorney

A living will, also known as an advance directive, is an express direction of your wishes regarding certain types of medical treatment in the event of specific circumstances. The traditional living will is only triggered

if you suffer from a “terminal condition.” The problem presented by a traditional living will is that it generally will not be effective if you are gravely ill and in an irreversible condition, but are not terminal. Most definitions of “terminal condition” would not include an irreversible coma or persistent vegetative state, or those who may be conscious but enduring an unacceptable quality of life.

In an effort to address the limitations of a traditional living will, a healthcare declaration may be executed that states you would not want your life prolonged if the treatment or procedures will not also improve your quality of life. Many of these forms specify certain procedures, like artificial nutrition and hydration or the use of a ventilator, in an effort to give you the ability to be very specific about which types of treatment you would or would not want. However, even with these more detailed provisions, it is impossible to plan for every possible medical treatment or procedure. A durable power of attorney for healthcare decisions allows you to appoint an agent to act on your behalf for the sole purpose of making medical decisions in the event you are unable to make those decisions yourself. Your agent, under the power of attorney, can use the living will and healthcare declaration to support his or her decisions on your behalf.

Challenges in Drafting Living Wills and Related Documents

While logic may tell you that any form is better than none, it is important to have a comprehensive document that fully ex-presses your wishes. The form provided by your doctor’s office or that you find on the Internet may not be sufficient.

The Schiavo case has highlighted the challenges in drafting an effective living will. Some of these challenges include:

It is important when having a living will prepared that you address all of these issues. Your document should contain specific guidance about your goals and the results you want to achieve, rather than focus on specific treatments or procedures.

While having a living will prepared is an essential first step, it is equally important that you discuss your wishes with your family, physician, minister or friends. If you have a family member who may object to your decisions, you should consider specifying that that individual is not to participate in any of your medical decisions. Unfortunately, if you have a family member aggressively opposing your decisions, many doctors and hospital administrators will be reluctant to withdraw life support if that person threatens to hire a lawyer or talk to the press.

If you do not have a living will and durable power of attorney, you should obtain good legal advice in preparing these complex documents to ensure that your wishes are fully understood and honored by the medical community, caregivers and family members. If you already have these documents, you may want to review them periodically to make sure specific issues are addressed.

 

Christine Graham is an attorneyin the Tax, Estate and Business Planning Group of Shughart Thom-son and Kilroy. She can be reached by phone at 913.451.3355 or by email at cgraham@stklaw.com.