Living Wills, or
It is difficult to imagine a time when you might not be able to make your own decisions regarding something as basic and personal as your healthcare. However, the unforeseen can happen. Whether as a result of a sudden accident or illness, or of a more gradual process such as a terminal illness or aging, the worst can happen to anyone. The choices surrounding your medical care are too important to leave to chance or to become a burden to a family member who may or may not know about or agree with your preferences. For this reason, you need an experienced attorney to help you prepare a Living Will.
What is the difference between a Living Will, an Advance Healthcare Declaration, a Power of Attorney and a Do Not Resuscitate Order?
These are documents which allow you to leave written instructions regarding the healthcare you do and do not wish to receive and who should make health care decisions on your behalf should you become incapacitated. The names of the documents vary from state to state. In Pennsylvania, you most likely will create a Healthcare Power of Attorney with Advanced Medical Directives. The following is a brief summary of some of your options:
- Living Will (Advanced Medical Directives): In this document, you leave your specific wishes controlling the medical care you would desire if you were rendered mentally incompetent and either terminally ill or permanently unconscious. You would specify your preferences concerning the initiation, continuation, withdrawal and withholding of treatments. This would include directions on whether or not your physician should “pull the plug”. It is important to note that it is unrelated to a conventional Will, also called a Last Will and Testament, or to a Living Trust.
A properly drafted Living Will accomplishes the following:
- Ensures your wishes be carried out to the greatest extent possible;
- Enables you to name a Designee who will make decisions for you if you are deemed mentally incompetent and terminally ill or permanently unconscious. (It is wise to also name a healthcare proxy who may make decisions at other times when you are unable to do so. You may do this as discussed below under “Healthcare Power of Attorney”.)
- Guides your healthcare surrogate in making crucial medical decisions on your behalf; and,
- Relieves the burden on loved ones that would be created if they had to attempt to guess your wishes.
Power of Attorney for Healthcare: Also known as a medical power of attorney, this is the document in which you assign a trusted individual to be your health care proxy. Sometimes called your Agent, designatee, surrogate, healthcare proxy or attorney-in-fact, this person will be in charge of making decisions on your behalf in accordance with the directives you set forth, should you be unable to make your own decisions. Similar to the Designee in your Living Will, this person may act if you are deemed mentally incompetent without being either terminally ill or permanently unconscious.
- Do Not Resuscitate (DNR) Order: Sometimes used to supplement other directives, a DNR expresses your desire not to receive cardiopulmonary resuscitation (CPR) in the event of a medical emergency. If you are at the hospital, you may ask your doctor to place a DNR in your record. You may also make a pre-hospital DNR which you keep nearby at your home or care facility so that paramedics are aware of your wishes. Generally, however, a “DNR” is incorporated into your Living Will.
Who May Make an Advance Medical Directive or Living Will?
A Living Will may be made by any person who is of sound mind (mentally competent) and meets one of the following criteria:
- is 18 years of age or older;
- has graduated from high school; or,
- is married.
The Declaration does not need to be notarized, but must be signed by two (2) adult witnesses other than the signatory. It is strongly recommended, however, that all Estate Planning documents, Wills, Living Wills, Trusts, etc. be notarized!
When Will an Advance Healthcare Declaration Come into Effect?
From the moment you sign a Living Will, your designee may operate in your place. So, if you fall down a flight of stairs, are unconscious, but not terminal, your Agent may, for instance, authorize brain surgery.
Must My Physicians Follow the Directives?
Yes, under new laws enacted in 2009-10, your physicians must follow your directives.
Are the Directives Followed if I Am Pregnant?
Regardless of the existence of a Living Will, life sustaining measures, including maintaining hydration and nutrition, must be provided to a pregnant woman who is incompetent and either terminally ill or permanently unconscious. In Pennsylvania, the Commonwealth pays for the expenses of all such treatment, even if it were specified in a Living Will.
However, the Living Will would still be followed if the attending physician or obstetrician finds that treatment:
- Would not ensure a live birth;
- Would be detrimental to the health of the mother; or,
- Would cause the woman pain which medications would not alleviate.
Note that, if no pregnancy is known, no one has a right to require the incapacitated woman be given a pregnancy test.
Will My Living Will Affect My Insurance?
The law specifies that the presence or absence of a Living Will may have no bearing on life or health care insurance. This means you may not be required to create a Living Will in order to buy or keep insurance, and that the existence of a Living Will should have no impact on your insurance rates.
Why Do I Need a Healthcare Proxy?
Naming a Healthcare Power of Attorney (or, more precisely, your “Agent”) to represent your interests should you be rendered unable to do so is important because:
- Regardless of the degree of specificity within your Living Will, there can always be unforeseen circumstances necessitating someone to make decisions on your behalf. You want to choose an agent who you trust to respect the general guidelines you set forth and who knows you well enough to understand your wishes.
- If you are rendered incompetent but not terminally ill nor permanently unconscious, it is important that you still have someone you trust to make healthcare decisions on your behalf according to guidelines you provide.
- Designating an Agent keeps family members from arguing over who should make the decisions.
- It makes it completely clear who you want to make decisions on your behalf. If you are rendered unable to speak for yourself, many institutions would choose your next of kin as your agent. Oftentimes, that is not the person you would choose. You may know the burden would be too great for that individual, or perhaps your know your next of kin would be unable to let go in a situation in which you would choose to terminate care. Also, choosing the legal next of kin could mean leaving these crucial decisions in the hands of a spouse from whom you are separated, or having a parent selected over a live-in partner.
What Do I Do if My Family Members Disagree with My Wishes?
If you expect family members to disagree with your wishes regarding your care, it is even more critical the you have a carefully worded Living Will prepared by an experienced attorney such as Gary Stewart Seflin. Additionally, taking the following steps is wise:
- Discuss your desires and the reasons behind them with your family, particularly if you anticipate their objections;
- Inform them in writing of your choice for your healthcare proxy and the reasons for your choice;
- In writing, let them know that you do not wish for them to be involved in your healthcare decisions; and,
- Give a copy of these written communications to not only your Agent, but also to your primary care physician and possibly your specialist supplying care to you for a specific ailment or injury.
Who Should Receive Copies of My Documents?
You and your attorney should keep originals of your signed, notarized and witnessed Healthcare Power of Attorney with Advanced Medical Directives. Copies should be distributed to family, friends, healthcare providers, and clergy.
Can I Alter or Revoke These Documents?
You may change or revoke your Advance Healthcare Declarations, regardless of your state of health, at any time by simply informing your attending physician or another person of your wishes. You may revoke a Power of Attorney at any time that you are of sound mind either in writing, or by informing your agent, physician or other health care provider of your decision.
If possible, it is always best to make these alterations in writing with the aid of your attorney. It is important to ensure that the most recent copies of the documents are in your medical and legal files so that your wishes are clear and will be followed.
Who Should Prepare My Documents?
In order to ensure that your documents are as specific and complete as possible, are properly handled, and comply with all relevant laws, it is best to have them prepare by an experienced attorney.
Estate Planning is too important for yourself and your loved ones to let anyone other than an experienced Estate Attorney handle your affairs. To arrange a free consultation with Gary Stewart Seflin, Esquire, call 610-892-9700 or fill out our Contact Form here.