Living Will basics

A living will, or health care directive, is a legal document which allows you to express your desires regarding end-of-life medical treatment. Whether or not you would like a living will and what it should specify are very important decisions that should be part of any estate planning process.  Many people are familiar with some of the key features of a living will thanks to popular news stories or TV dramas (Law & Order, ER, etc.) such as “do not resuscitate” (DNR) orders or naming another to make health care decisions for you in case you are unable to do so, but there are many more issues to consider.

A living will allows you to specify what type of care you want to have and what types of care you want to have withheld or withdraw if you are in a “terminal condition or permanent unconscious condition”. The determination of whether a patient is in a “terminal condition” or “permanent unconscious condition” which is irreversible and incurable must be made by two physicians, one of whom is the patient’s attending physician.  The types of treatment that can be ordered withheld or withdrawn include any “life-saving” treatments, which include any medical or surgical intervention that would serve only to prolong the process of dying.  Examples of “life-saving” treatments include:

• Artificially provided nutrition or hydration;
• CPR;
• Mechanical breathing assistance, such as a ventilator or respirator;
• Use of antibiotics; and
• Kidney dialysis.

A living will can specify exactly which treatments (including any not listed in the above list) should or should not be allowed if the patient is determined to be in a terminal or permanent unconscious condition.  Additionally, a living will should state whether or not pain medication should be given and any restrictions on its use.
Another type of advance directive available to individuals is called a Physicians Orders for Life-Sustaining Treatment, or POLST. A POLST is similar to a living will in that it allows you to specify ahead of time your desired life-sustaining treatment options including those listed above.  The POLST is a single form that your physician completes after discussions with you regarding your options and desires.
Naming another individual to make health care decisions for you if you are unable is called a “durable power of attorney for health care”.  Such a document authorizes an “attorney-in-fact” to act on your behalf in making health care decisions and can instruct the attorney-in-fact to act in accordance with your wishes as spelled out in your last will but also allows your attorney-in-fact to make decisions even if you are not in a terminal or permanent unconscious decision.  Such health care decisions can also include psychiatric care and admission to health care facilities and nursing homes.
Like a living will, the durable power of attorney for health care is completely customizable to specify exactly which actions the attorney-in-fact can or can not take and when the power of an attorney-in-fact to act commences (for example immediately or only after a determination that the patient is incapacitated and unable to make their own decisions).  The attorney-in-fact for health care decisions, like any person granted power to act on your behalf, should be someone you trust absolutely as well as someone who will be able to carry out your wishes regarding treatment decisions.
The primary benefit of a durable power of attorney for health care is the ability to name someone to act on your behalf ahead of time and negate the need for guardianship proceedings to name a guardian to make such decisions should you become incapacitated or otherwise unable to make such decisions in the future. Guardianship proceedings are court proceedings to determine that an individual needs a guardian and to then appoint an appropriate guardian.  Because it is a court action, guardianship proceedings are much more expensive (thousand of dollars) and time consuming than devising and executing a durable power of attorney (generally including in an attorney’s fee for drafting a will). Additionally, there is no guarantee ahead of time who the court will decide to be your guardian.

Discussions and decisions regarding end of life medical treatment options can be very difficult for many people as we generally do not like to discuss or consider the circumstances surrounding our death, especially the possibility of a terminal illness. However, I believe it is better to deal with some eventualities ahead of time when you can choose who to have these discussions with and consider your options.  A living will or POLST and a durable power of attorney for health care are very important documents that provide crucial guidance and help for those that find themselves in difficult circumstances.  Wouldn’t you prefer it that those who love you and care for you are guided by your own wishes and desires in making medical decisions if you are unable to vocalize those decisions yourself?
Washington State operates a Living Will Registry for those who wish to register their living will and durable power of attorney in the state’s database for easy access by loved ones and medical providers.  Washington State also provides statutory forms of both types of documents for those who wish to make simple documents covering the subjects discussed above. I have provided links to this site as well as a few other sites with information regarding these documents below. If you wish to discuss any of these documents, the issues above or your estate plan in more detail with an attorney, I encourage you to contact me at ryan@ryanvelo-simpson.com or go to my website (www.ryanvelo-simpson.com) to learn more.

Links:
Washington State Department of Health Living Wills Registry & Forms
Gunderson Lutheran Hospital Advanced Care Planning Information Site
Advanced Care Planning Booklet (PDF)
Aging with Dignity – Five Wishes Program