LETTER OF THE LAW

A Living Will or Advance Directive Often is Not Enough

Communicating your wishes to doctors, family members and others in advance is key.

By Joseph W. Gallagher, Esq., LL.M., and Mark E. Kropiewnicki, Esq., LL.M.

In 2005, the Terri Schiavo case focused national attention on the need for a living will or advance directive. Ms. Schiavo had left no information about her personal wishes in the event of a situation where she was incapable of rendering a decision about her medical care. The lack of clear, documented information about how she wanted to be treated led to a long, bitter legal and political battle over her end-of-life care. As a direct result of the Schiavo case, many people have created, or are considering creating, a living will or advance directive to formally define their end-of-life wishes.

Why You Need a Living Will

Generally, a competent adult (the precise definition depends on the law of your state, but usually means any person who's at least 18 years old) has the right to decide whether to accept, reject or discontinue medical care. However, you may not always be able to make your wishes known to your physician or other healthcare provider. For example, you may be incompetent (commonly defined as lacking sufficient capacity to make or communicate decisions concerning yourself), in a terminal condition, or in a state of permanent unconsciousness, and thus unable to tell your doctor what kind of medical measures you'd like taken on your behalf. A living will or advance directive can solve this problem.

An advance directive (known in some states as an advance directive for health care) can take many forms. One of the most common is a living will. Such documents outline your wishes for the type and extent of medical care in the event you become incapacitated and can't make your wishes known directly. An advance directive may also include the designation of a medical surrogate or power of attorney for health care (a "proxy") to carry out your expressed wishes or to assume responsibility for medical decisions if you're unable to do so.

The existence of a properly executed advance directive doesn't automatically prevent disagreements or legal challenges. This is because it isn't always clear and unambiguous whether someone is in a terminal condition, in a state of permanent unconsciousness, or has no hope for recovery. Consequently, disagreements still can result among family members, as they occurred in the Schiavo case. If you designate a medical surrogate or power of attorney for health care and clearly communicate your desires to that person, you may be able to avoid family disagreements, provided you stipulate that your proxy alone is authorized to interpret and act on medical information.

Legalities of Directives

There's no single correct way to make a living will or advance directive declaration. However, the document is valid only if signed. If you can't sign it yourself, someone else may sign it on your behalf. In either case, be sure to comply with the legal formalities and requirements under your state's laws for proper witnessing. It's also advisable to date your advance directive and have witnesses to your signature, even if the laws of your state don't require it. In many states, you're not required to have your living will or advance directive notarized; however, it's prudent to do so, especially if you anticipate that you may need to use the advance directive in another state.

An advance directive typically becomes operative when your doctor has a copy of it and has concluded that you're incompetent and in a terminal condition or in a state of permanent unconsciousness.

Your healthcare provider must inform you if he can't in good conscience honor your expressed wishes or if his policies prevent him from doing so. This is one key reason to give a copy of the document to your doctor(s) and others who may be in charge of your medical care. If a healthcare professional can't follow your wishes, he must assist in transferring you to another practitioner who's willing to carry out your directions (assuming that your wishes are recognized as legally valid by your state).

Most states' laws allow you to revoke an advance directive at any time. You simply have to tell your healthcare provider that you're revoking it. Anyone who heard or saw you revoke an advance directive may also inform your healthcare provider of your revocation.

Communicate Your Wishes

Communicating your intent ahead of time is paramount to prevent problems when the need to use the advance directive arises. Upon signing an advance directive, inform your immediate family and physician(s) of your wishes. You should keep a signed copy of the document with you at all times. Give copies to immediate family members, doctors, attorney, close friends and any proxy named in the advance directive. Keep a copy in multiple locations, for example, your car, office or vacation home, to help ensure that it's found in a timely fashion if needed. Remember, a living will or advance directive is only effective if your healthcare provider is aware of its contents and has proper documentation to direct decisions about your care.

Seek Legal Guidance

To create a living will or advance directive that will be legally valid in your state and stand the greatest chance of carrying out your wishes, it's best to consult an attorney experienced in drafting such documents. And communicate, communicate, communicate your wishes as described in your living will or advance directive to family, friends and healthcare providers. The clearer you are about your intent before a medical crisis arises, the more likely your wishes will be carried out when you're unable to speak for yourself. nMD