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Flores Law News Legal Tools That Give You Control at the End
Flores Law News Legal Tools That Give You Control at the End | Legal Tools That Give You Control at the End |
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Many people have fears about ending up incapacitated, unconscious and sustained only by the mechanical rhythms of lifesupport equipment. But even then, the law lets you control your own situation, by means of advance directives. They come in two forms, and almost every state authorizes at least one of them.
Health Care Power of Attorney Powers of attorney are described at length in the preceding section, but this particular variety is worth noting again because it lets you designate a person who shares your beliefs to be your agent and make health care decisions when you can't. Every state except Alabama and Alaska authorize holders (or agents) of health care powers of attorney to withhold or withdraw life support. Appointing this person is especially important if you believe that some of your family members may be reluctant to honor your wishes. Many states forbid naming more than one agent to share in the decision making. But it's a good idea to choose an alternate person to make sure that someone is available when needed. A Living Will Your other option is to write a living will. Forty seven states and the District of Columbia have laws governing this written document in which you instruct your family and/or doctors about your wishes regarding life support. (Massachusetts, Michigan and New York don't have explicit laws validating living wills, but their state courts have upheld them as legal documents.) Most living will laws apply only if you are terminally ill or permanently unconscious, and they generally state that life sustaining technology should not be used to prolong life. In some states, the living will of a pregnant woman will not be honored. Many experts favor executing both a living will and a health care power of attorney to ensure the best protection of your rights. The specifics of a living will A living will has two distinct parts:
If you live part of the year in another state, be sure to complete forms for both states. You can generally add to the forms, adapting them to your specific needs and concerns. It's a good idea to discuss possible additions with your doctor or with Choice In Dying. That will help you avoid writing your wishes in such a way that you accidentally preclude treatment you would want or permit treatment you don't want. In any event, discuss your plans and options with your family physician to make sure you understand the medical ramifications of your decisions and that the doctor understands and agrees with your wishes. Make sure, too, that he or she practices at hospitals that will uphold them. If not, you might want to change doctors. While most states have their own variation of a living will law, all states and the District of Columbia grant civil and criminal immunity to doctors who act in accordance with a living will. But they are not legally bound to. If there's an emergency, you may be attended by an unknown doctor who won't abide by your wishes written or otherwise. The following steps are worth trying, though they may be difficult in practice, especially in a critical care situation: Your family could bring in your family physician as a persuasive force, find another physician at the hospital who will agree to relieve the attending physician (the physician of record), or transfer you to another hospital. As with conferring power of attorney (discussed above), you should make a living will when you're of sound mind, that is, able to make decisions on your own behalf. Most states require two adult witnesses who aren't relatives be present at the time you sign the living will. In some states, people who stand to benefit from your death, such as heirs and insurance beneficiaries, are not allowed to be witnesses. Once you've written your living will, it's a good idea to review it every year or so. If it no longer reflects your wishes, you should change it or revoke it entirely by writing a new one. Make sure all your family members, other appropriate people and your doctors have copies, and ask your doctor to include a copy in your medical records. Click here to learn about help that is available for elders. Help Your Family Help You It's probably not enough just to prepare these legal expressions of your wishes. Take the time to personally discuss them with your family. A clear understanding of your intent will help everyone more easily honor your wishes. You can help eliminate any second guessing and avoid the interference of an uninformed or disapproving relative who could otherwise cause conflict and delay. You could even relay your instructions in a conversational way on videotape. If You Leave No Instructions In some states, if there is no clear and convincing proof of your desires, you must be kept on life support. In others, if you haven't written a living will and have not given someone durable health care power of attorney, the medical decisions will fall to your next of kin. He or she will have the legal right to tell doctors whether to pursue so called extraordinary measures to keep you alive. Which relative has seniority? The responsibility falls first on a guardian, if one has been appointed through the intervention of a family member or the state; if no guardian has been appointed, then it falls to a spouse; if no spouse, then to adult children; if none, then to a parent, if one is alive. While the decision rests with whoever ranks first in this chain of command, if someone lower down disagrees with the stand in's health care decision, any action must be postponed if possible until he or she can go to court and contest the decision. So, for example, if a desperately ill patient's adult children don't agree with her spouse about her care, they can ask a court to block the spouse's decision for the parent's medical care. In the other half of the states, the laws are vague regarding the next of kin's rights to make deathbed decisions. There is a presumption that they have the right, but an attending physician is not bound to abide by their decision. If the doctor does not accede to the next of kin's wishes, however, then the spouse or adult children may have to find another doctor or go to court. For more information on your state's law, call Choice In Dying (click here for their number). For More Information
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Copyright © 2007 Flores Law Firm - Joe A. Flores, JD, FNP, RN. Developed by Nerworks
