Living wills, advance medical directives, health care powers of attorney and health care proxies are just a few of the kinds of documents individuals may employ to express their wishes regarding medical care and treatment. Continuing advances in science and technology offer the possibility of longer lives, but with this advantage come difficult decisions regarding quality of life for individuals who are near the end of life or suffering from a debilitating illness.
With a growing range of concerns related to end-of-life care, it is critical for individuals to address these issues while they are still able and to set forth their wishes in a clear and authoritative manner. A written directive is an important part of this process, as is candid discussion with loved ones. While it is impossible to anticipate every situation that could arise as a result of illness or accident, it is helpful to consider and discuss what one's choices might be with regard to therapies, treatments and procedures that include artificial help in breathing, restarting and maintaining heart function, administration of pain medication, and artificial feeding and administration of fluids.
Any of the above measures may be needed by an individual in the course of a traumatic accident, illness or injury from which full recovery may be expected, and while the decision to utilize such therapies might be an easy one in these situations, it is more difficult where these measures may be employed for an individual who has a terminal illness, or is in an irreversible coma or persistent vegetative state. There is no answer that fits all people or all situations, and thus it is important to discuss these issues with loved ones and with trusted advisors, including medical, legal - and if desired - spiritual advisors to develop a personal policy. Such a policy should be set forth in a clear, written directive for use when one is deemed medically or legally incapable of making decisions in a particular situation. Individuals may also wish to discuss and set forth in writing their detailed wishes and instructions regarding donation of organs and tissues for transplant after death.
For each of us, our written instructions to medical institutions and health care providers can be as simple as an order to resuscitate or not to resuscitate, or they may deal separately and in great detail with a variety of situations. In most states, a simple document that contains such instructions for use when its maker is no longer able to make treatment decisions or communicate his or her wishes is commonly referred to as a "living will." Any individual who is older than the age of majority and is of sound mind can make a living will, which should be signed in the presence of two adult witnesses. In some states, such as Florida, and in the District of Columbia, a living will is a free standing document that may be used alone or in conjunction with a separate document that gives one or more agents the authority to make health care and treatment decisions on behalf of the principal (commonly called an "advance medical directive"). In other states, including Maryland, Virginia and New York, a single document is utilized both to set forth the wishes of the principal and to name an agent to enforce those wishes and to act as a surrogate decision-maker in situations not addressed specifically.
Some states have standardized documents for the purpose of setting forth end-of-life instructions and/or designating an agent to make health care decisions in the event the individual no longer can decide or communicate for himself or herself. In other states, such documents are drafted by lawyers after consultation regarding individual wishes.
Living wills and advance medical directives should be considered as part of every estate plan, but each carries its own unique benefits and limitations, which should be discussed fully. Estate planning lawyers generally are familiar with the provisions of applicable state law and can counsel clients as well as prepare the needed documents. Such services, and sometimes blank forms without counseling or explanation, also are often available from local or national organizations, and from some hospitals as well.
It is important to bear in mind that blanket reliance on forms should be avoided whenever possible. It is common for standard living wills and/or advance medical directives to refer to complicated medical procedures that lay persons, including estate planners, may not understand. Language used in some forms, for example referencing "extraordinary measures," is ambiguous and open for interpretation. Unless a physician is consulted, it would not be wise to presume that a simple form actually represents a person's wishes. Instead, it is useful for a person to describe in his or her own words what measures should be taken, which the attorney then can add to a document that contains language that fits applicable legal and medical requirements.
In many states, it is possible to address donation of organs and tissues for transplant as part of a living will. Even in states where the wish to donate organs or tissues is indicated on an individual's driver's license, the transplant coordinator may defer to the wishes of next of kin. Therefore, a number of states now permit an authoritative statement of an individual's wishes with regard to donation of organs and tissues; some states permit by statute the designation of an agent for the sole purpose of making such decisions. In other states, an individual must be registered as an organ and tissue donor. Due to the variations in state law, it is important to consult with an attorney regarding these issues. In addition, it is helpful to understand the impact of a decision to donate organs and tissues after death; for example, certain organs and tissues will not be suitable for transplant after death unless there has been an adequate supply of oxygen, with the result that an individual wishing to donate should not have a medical directive in place that refuses artificial help in breathing. Some attorneys are able to address these matters, but it is wise to consult with a physician.
It is desirable for individuals to have up-to-date documents that fit the requirements of their state of residence. Generally, but not universally, a valid document executed in one state should remain effective when its maker travels to another state. However, it is wise to execute new documents upon moving to another state or if an individual has homes in more than one state. In some states, this practice will be necessary because the state may not recognize living wills or advance medical directives from other states. In others, it may not be necessary but is still preferable. For example, in acute situations it may be an advantage to have a document that is familiar to local health care providers, including emergency medical personnel.
Copies of one's living will and/or advance medical directive should be provided to treating physicians, to a hospital upon admitting, and to loved ones. Many individuals keep copies of these documents with their estate planning attorney as well. It should not be necessary to provide an original to any provider; however, it is advisable to execute multiple originals so that if an original document must be provided it will not be the maker's only one.
To learn the particulars about preparing and signing living wills and advance medical directives, it is important to consult an attorney. In some states, these documents must be signed in the presence of a notary public. In general, two adult witnesses are needed and the law varies by state as to who may act as a witness. For example, a person who could benefit by legacy or inheritance as a result of the death of an individual generally may not witness that individual's living will. Similarly, some states prohibit witnessing by people who are related by blood or by marriage, or by those who are responsible to pay an individual's medical bills. Many medical institutions have policies that prevent their employees from acting as witnesses to such documents.
Once executed, a living will or advance medical directive should remain in effect for the rest of its maker's life. As mentioned above, it is wise to execute new documents upon moving to a new state or spending a significant amount of time in a state away from home. In addition, one's wishes may change, either as to treatment options or with respect to the person or people they have named to act on their behalf. Therefore it is beneficial to revisit and or update the documents after major life events. To revoke a designation of surrogate, one should destroy all originals and copies of the document containing that designation and then execute a new document.
The documents discussed in this advisory should be kept among an individual's important papers, but should not be placed in a safety deposit box, as that can restrict access in an emergency. Many individuals keep copies or originals with their attorneys, as well as filing copies with their regular medical providers and with hospitals upon admission. Some provide copies or originals to their loved ones, or to the individuals named to act for them. Above all, it is important to discuss the documents, and the decisions and preferences they set forth with loved ones and designated surrogates so that they will be familiar with one's wishes and able to see that those wishes are upheld.
There is no best time to put in place a plan for end-of-life care. As recent events have shown, difficult decisions can arise for individuals at any age. Thus, it is important to discuss these issues sooner rather than later. For younger individuals, in particular, it is necessary to revisit the document periodically. It would be a mistake to assume that a person's wishes and desires at age 30 remain constant over his or her lifespan. Though no document can be assured to resolve all end-of-life concerns, when properly drafted, living wills, health care proxies, advance medical directives and the like are a useful step in the right direction.
THE ABOVE ADVICE WAS NOT INTENDED OR WRITTEN TO BE USED, AND IT CANNOT BE USED, BY YOU FOR THE PURPOSE OF (1) AVOIDING ANY PENALTY THAT MAY BE IMPOSED BY THE INTERNAL REVENUE SERVICE OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TRANSACTION OR MATTER ADDRESSED HEREIN. IF YOU DESIRE SUCH AN OPINION, PLEASE SO ADVISE.