Planning for your future medical needs and treatment in the event you ever become incapacitated to make major decisions concerning your life is important to both you and your loved ones. This is often done through a living will, a durable general power of attorney for healthcare, or other advance medical directives. Such documents can have a significant impact on how these medical decisions and end-of-life treatments are made.
Living wills (or “living will directives” or “living will declarations”) have become quite popular in recent years. A living will is a legal document that spells out the types of medical treatments and life-sustaining measures you may designate to use—or not use—in the event of unexpected end-of-life situations. For example, the following language is a sample of the types of provisions often seen in living wills:
If at any time I should have a terminal condition and my attending and one other physician, in their discretion, have determined such condition is incurable and irreversible and will result in death within a relatively short time, and where the application of life-prolonging treatment would serve only to artificially prolong the dying process, my [attending physicians, family members, etc.] shall comply with my wishes as indicated below (check or initial appropriate spaces):
_______ I direct that such treatment be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication or the performance of medical treatment deemed necessary to alleviate pain.
_______I authorize the withholding or withdrawal of artificially provided food or other artificially provided nourishment.
_______I do not authorize the withholding or withdrawal of artificially provided food or other artificially provided nourishment.
_______I authorize the withholding or withdrawal of water or fluids necessary to provide hydration.
_______I do not authorize the withholding or withdrawal of water or fluids necessary to provide hydration.
In the absence of my ability to give directions regarding the use of life prolonging treatment and artificially provided nutrition and hydration, it is my intention that this directive shall be honored by [my attending physicians, my family, etc.] as the final expression of my legal right to refuse medical or surgical treatment and I accept the consequences of the refusal.
So if you are unable to make those decisions yourself, a living will instructs the medical personnel and family members to follow your pre-set determinations for treatment (or the withholding of treatment). The weakness of this approach is that it is sometimes difficult to accurately reflect your wishes in all medical situations, especially when factoring in the advancement of medical technology and the variety of unforeseen circumstances that might occur.
A durable power of attorney for health care (sometimes called “designation of health care surrogate”) is another approach. This document allows you to name one or more close family members or trusted friends to make decisions for you about your medical care in the event you are unable to do so. Whereas living wills tend to be more focused on death, a durable power of attorney for health care tends to be more focused on life. The person (or persons) designated as your agent or attorney-in-fact (or as your “health care surrogate”) is given the authority to make necessary decisions about your health care when you are unable to communicate your wishes. The strength of this approach is that this enables you to entrust the most important decisions regarding your health care to your close family or friends, or even a “committee” of such persons, which can be comforting, especially when those decisions could result in ending your life. You are not dependent on others automatically following and applying some pre-set criteria in a document, thus avoiding the sort of “one size fits all” mentality that is present in some living wills.
Some states combine the living will declaration and the durable power of attorney for health care into a single form, and the result is a more sensitive document. While there are numerous forms and resources for these documents on the internet and publications, the following resources may be helpful in starting your research on this important issue:
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