Living Wills and the Durable Power Of Attorney for Healthcare

Modern medicine can prolong a person's life, but, without improving the life itself, it can often lead to a vegetative state where the individual cannot decide as to what treatment should be performed and what should be avoided. It may also lead to prolonged pain and suffering. Moreover, family members may have to go to court or come to an agreement as to what has to, or should be done. The court may appoint a guardian ad litem who determines whether someone is actually incapacitated and whether a guardian or conservator needs to be appointed. Hence, the need for advanced healthcare directives.

Health documents and end-of-life documents, such as living wills, ethical wills, letters of instruction, burial and cremation instructions, and detailed funeral arrangements, should be prepared before they become necessary, especially for blended families that consists of children from previous marriages or families that do not include marriage. Living wills and the healthcare power of attorney are the 2 main types of health documents that convey the wishes of the declarant in regards to extraordinary health measures that should or should not be performed when the declarant's condition is terminal or is in a persistent vegetative state. Withholding treatment that would otherwise be ineffective would avoid many of the large expenses and prolonged grief of a terminal illness.

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However, health documents should provide general guidelines rather than specific instructions, because technology is improving continuously, and there are many different types of medical procedures, so it may not be practicable or prudent to provide specific instructions regarding procedures. It may be better to state general objectives, such as the avoidance of suffering when there is no hope of recovery. However, also avoid ambiguous or nebulous terms, such as "avoid heroic measures," since a healthcare provider would be unsure as to what was meant and could be legally liable for following such a vague provision. You may also want to provide instructions that conform to your religious beliefs.

In 1990, the Patient Self-Determination Act of 1990 became effective December 1, 1991, requiring all healthcare institutions receiving Medicare or Medicaid funds to provide patients with written information about their right under state law to execute advanced directives. The institutions must state what their policies are on withholding or withdrawing life-sustaining treatment, but the act did not specify what that policy should be. The healthcare institutions are also required to document in the patient's medical record whether the advanced care directive had been executed. It also requires the staff and the public be educated about the right to forgo treatment and to ensure institutional compliance with state law, where a violation thereof can result in the loss of federal funding. Nowadays, every state permits living wills and a durable power of attorney for health care decisions.

Because of privacy rules enacted under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), healthcare providers cannot provide information on your condition without your express consent or without a healthcare directive, even for your so-called "next of kin". Naturally, an intelligent decision regarding healthcare cannot be made without information. Hence, it is important to provide a provision allowing an agent or your family to be able to know everything about your condition. Additionally, you may also want other family members to know about your health status, even if they are not authorized to render decisions on your behalf. Include their name, address, phone number, Social Security number, their relationship to you, and any limits on what information should be provided.

Like other important documents, you should inform close family members or other relevant people as to where the documents are stored, and you should discuss the provisions of the document, especially to those who will have the decision-making power.

Living Wills

A living will (a.k.a. Advanced Directive for Healthcare — Instruction Directive, Medical Directive, Directive to Physicians) is a written document that states in advance about how life-prolonging medical care should be applied if you — the declarant — becomes terminally ill or permanently unconscious. If a living will is clear, unambiguous, and properly prepared, then the hospital or doctor must follow its wishes, and they, in turn, will be without civil or criminal liability for withholding treatment. Living wills, also known as advanced healthcare directives, may also include a healthcare power of attorney or it may be a separate document. If the living will or other healthcare directive is not available, then many states allow the appointment of a surrogate, such as a spouse, domestic partner, or other close family member to make the healthcare decisions for you.

Living wills must comply with state laws which differ in many respects, but as with wills, there may be many specific requirements. Most states, for instance, require 2 witnesses, while some require notarization of the document; many states allow either, while New Hampshire requires both, and within the state, the number of witnesses required for a living will may differ for that needed for a healthcare power of attorney. A few states require only 1 witness or they may have no witness requirement. Moreover, a living will may not be valid if you are pregnant. You must also be a minimum age, at least 19 years in most states. Additionally, the number of physicians required to certify that the conditions of the living will have been met with respect to the healthcare directive have been satisfied, and one may have to be your regular physician. For obvious reasons, many states do not allow witnesses who would benefit from your estate or who are related. Some states may also forbid any person who has a healthcare power of attorney over the declarant from being a witness to the living will.

A state may have a statutory form of a living will that conforms to state requirements and will have the most common provisions, so that state residents can use a statutory form without spending a lot of money for a custom document, although custom documents can still be used, and, in many cases, should be used, especially for more complicated directives.

One provision that every living will should have is who is permitted to receive your healthcare information, especially if certain members of the family are not legally related to you, such as partners who never married and are not considered married under state law. This can help the family and the doctors to agree as to what is to be done.

Some of the common provisions of living wills include:

Note that although a living will does not appoint anyone in particular, but simply represents the desires of declarant, someone would at least have to be aware of the document, so that it can be given to healthcare providers when necessary. Hence, it also makes sense to have a durable power of attorney for healthcare.

Durable Power of Attorney for Healthcare

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A durable power of attorney for healthcare (a.k.a. Healthcare Proxy, Advanced Directive for Healthcare, and Medical Power of Attorney), is a legal directive allowing someone, the agent, also known as a healthcare representative, selected by you, the principal, to make healthcare decisions if you are unable to do so. Like other durable powers of attorney, it may be a general power, allowing your agent to do anything that you could do, a limited power, allowing your agent to do only specific things, or a springing power, meaning that the power only springs into life when you become incapacitated. Powers that are usually granted include: access to medical records and information from the physicians, who would otherwise be unable to tell the proxy about the health status of the principal because of privacy laws; the ability to transfer the principal to another facility, or even to another state; the ability to authorize a "do not resuscitate" (DNR) order; to dispose of the remains, authorize an autopsy, or to donate organs for transplant, education, research purposes.

The main disadvantage of a springing power of attorney is that your agent will have to prove that you are incapacitated before she is able to do anything, which may be problematic. A limited power of attorney can also present problems, since your agent may need to do things that were not specifically provided in the power-of-attorney document.

Conclusion

Like a will, a living will or a durable power of attorney can be revoked at any time. Because the legal requirements for living wills and the durable power of attorney for healthcare differs widely among the states, an individual living in more than 1 state should prepare a living will and a durable power of attorney for healthcare for each state.

Health documents should be readily available to the relevant people. They should not be kept in safe-deposit boxes, because the banks may be closed on a weekend or holiday, and your agent may not have signing authority to open the box.

When selecting someone as the agent, consideration should be given to whether the agent will be around and maintain her own capacity when her services are needed; whether the agent has the necessary knowledge and intelligence to make good healthcare decisions; and whether the agent has the fortitude to make tough decisions. For instance, it is common to select a spouse, but if the spouse is the same age as the principal, and both are elderly, then it may be more prudent to select someone younger, such as a child who lives nearby.

As with wills, any health documents that are replaced with newer documents should be destroyed or at least marked as revoked.

Because of the complexity of these issues, an attorney should always be consulted who specializes in end-of-life matters, since the health document may not be legally valid under state law if its requirements are not satisfied.