I find myself writing this article in a place no one wants to be – by my dear 90-year-old mom’s hospital bed. It is Saturday, and the last time she recognized me was Thursday morning. We don’t really know what is wrong, but something definitely has happened to bring her to this point in her life. One thing Mom did over 25 years that has really helped is that Mom and Dad both had an advance medical directive (AMD) or living will drawn up.
We all struggle at some point in our lives to find “the right thing to do.” Adding to the dilemma is the fact that what is right and what is legal are not always in accord. When I was an undergraduate at Virginia Tech, I had the honor to take ag law courses led by Dr. Leon Guyer. Guyer used to always say the answer to any question is “It depends.”
Caring for an elderly parent can leave a child in an awkward position – suddenly the parent and child have changed roles, and the “it depends” questions need some concrete answers. Guyer and his protégé, Dr. Jesse Richardson, wrote an excellent publication which I have reprinted below. The entire document along with verbiage to use to create your own AMD can be found online (Managing Prosperity: Estate and Retirement Planning for All Ages. Advance Medical Directives (Previously Called "Living Wills")).
The advance medical directive (also called “advance directive” or “directive”) provides you with the right to decide what future medical treatments you desire. You can make these decisions now so that if you are too sick or unable to tell them later, your doctor and loved ones will know what you want them to do. You can choose someone you trust to make these decisions for you if you are unable to make them for yourself or you can write these decisions down on paper in the form of an advance medical directive. You can change the specifics of your advance medical directive at any time as long as you are competent.
In brief, an advance directive allows an individual (the declarant) to formalize his or her wishes in the event of a terminal condition with no reasonable expectation of recovery or in the event of a persistent vegetative state. The advance formalization of these wishes allows past decisions to be implemented if the declarant becomes unable to make or communicate such a decision.
The advance directive may be oral or written. The authors recommend a written advance medical directive to ensure that failing memories, deceased witnesses or misinterpretations do not contradict your intentions. If the advance medical directive is written, two witnesses and the declarant must sign the document. If oral, the advance directive must be made in the presence of the attending physician and two witnesses. Revocation of an advance directive is by physical destruction of the document, by written revocation or by oral and witnessed declaration.
Many people believe that an advance medical directive must instruct the doctor to “unplug the machines.” To the contrary, the declarant may authorize the providing, withholding or withdrawal of life-prolonging procedures in the event of a terminal condition or persistent vegetative state. Therefore, you may direct the withdrawal of all care that artificially prolongs life, direct the doctor to artificially prolong your life by using all available means or any option that lies between these choices.
Additionally, a written advance directive may appoint an agent to make health-care decisions for the declarant if the declarant is unable to do so. This latter option is a health-care power of attorney.
Legally, the power of attorney format holds certain advantages over the advance medical directive that merely states your desires. In the latter case, you have stated your desires AND appointed someone (“the agent”) to carry out those decisions for you. However, as a practical matter, certain persons may not feel comfortable acting as an agent for health-care matters. Each family is different, and you should consider the feelings of the prospective agent prior to appointing him or her.
As with powers of attorney, the agent should be notified prior to appointment and permission should be obtained for the appointment. Unlike the power of attorney, the agent under an advance medical directive may only make decisions if the declarant is unable to do so.
Recent amendments expressly provide for expanded powers of the agent under an advance medical directive. An agent may now be empowered to make an anatomical gift of all or any part of the declarant’s body. This agent may be different than the person appointed to make health-care decisions. Additionally, an amendment effective July 1, 2000, expressly allows the declarant to empower an agent to make decisions as to visitation issues involving the declarant in certain situations (in other words, who may visit the declarant and when). The act also provides an alternative procedure in the absence of an advance directive.
Advance medical directives should be distinguished from durable do-not-resuscitate orders (DNRs). A DNR is a written physician’s order to withhold cardiopulmonary resuscitation from a particular patient in the event of cardiac or respiratory failure. DNRs may be issued by a physician for his or her patient only with the consent of the patient.
You should seriously consider making an advance medical directive. Written directives hold the advantage of clarity and certainty over oral directives. The existence of an advance medical directive, of any form, alleviates hardships on family members and friends. The content of any directive, however, must be fashioned for each individual and must constitute a personal choice.
At the end of the publication listed above, an example of a legally binding living will is offered. It is recommended that interested persons study the suggested form and then have a licensed attorney at law prepare the advance medical directive in conjunction with the other documents forming your estate plan. At least three originals should be signed. Many people take one original with them whenever they travel. This is a wise practice in the event of accident or other health-related event in unfamiliar surroundings.
Further, it is suggested that you take an original of the directive to your next doctor’s appointment. Discuss the directive and your wishes with the doctor and ask the doctor if there are any questions. The doctor can then place the directive in your file, along with notes on the conversation. Your wishes have been made clear and the doctor will be comfortable in following your wishes. Physicians initially showed resistance to advance medical directives. However, the authors now observe that physicians prefer patients sign a written advance medical directive. Often, a physician, nurse or hospital personnel will inquire about or suggest an advance medical directive when a person is admitted to the hospital.
In summary, an advance medical directive may form a powerful part of your estate plan. Properly drafted, the directive can carry out your wishes while relieving family members of a potentially heart-wrenching decision at a time of stress.
