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Advanced Health Care Directives

By David S. DeRose

In previous articles, we have emphasized the importance of making known your wishes for your medical treatment in the event you become unable to make these decisions for yourself (medical power of attorney) and your wishes for end-of-life decisions (living will). Together, these documents are now referred to as an advance health care directive. In January 2007, the legislature made changes to the law regarding these directives.

It should be noted that medical powers of attorney and living wills that were created before January 29, 2007, remain effective even though they do not contain some of the newer language of the revised statute.

A medical power of attorney appoints in writing a trusted family member or a friend to make medical decisions in the event of your incapacity or inability to make them. The medical power of attorney authorizes this person, now referred to as a “health care agent,” to access your medical records, to select your physicians, to decide upon a course of treatment and to follow your care until you are able to make your own decisions.

A living will deals with what is now termed an “end-stage medical condition.” Changes to the law now provide that you have the right to decide in advance which measures should or should not be taken to prolong your life if you have an “incurable and irreversible medical condition” in an advanced state that your physician believes will result in death. The living will becomes effective when your physician determines that you are incompetent — that is, unable to communicate and/or understand health care decisions on your own — and you are either permanently unconscious or have an irreversible condition that leads your physician to conclude that death is imminent.

Preparation of a living will gives you the ability not only to select an appropriate health care agent to speak for you, but also to inform the medical community of the treatment you wish to have withheld if there is no feasible chance for recovery. Typically, the treatments that may be withheld include cardiac resuscitation, mechanical ventilation, kidney dialysis, surgery, chemotherapy, antibiotics, and perhaps even hydration and tube feeding. Your living will informs your closest relatives and medical providers of your wishes in advance so that action is not taken to prolong unnecessarily the process of dying. Also, it gives you the opportunity to declare that you wish to be made comfortable through pain medication or other means, not leaving this subject to chance or decision by someone else.

If you do not have an advance health care directive, the new law determines who will serve as your “health care agent” to make your medical decisions. Under the new provisions, your spouse and any adult children who are not children of your spouse would be on equal footing to make decisions for you. In the absence of a spouse or children of a first marriage or prior relationship, adult children of the present marriage are next in line. After that, parents, brothers or sisters, then adult grandchildren, in that order, are considered for this responsibility. Since there may be people on this list who you do not want to control your destiny, you must prepare an advance health care directive.

There is truly no substitute for good planning. This is a subject that you must discuss with family and your health care agent. The discussion must be thorough about the duties and responsibilities now placed on the agent by the new law. These documents are not “one size fits all!” They must be tailored to your personal circumstances. To complete the process properly and make your decisions effective, ask questions of your physician and have your attorney prepare an advance health care directive.