Advance Directives Part II—Health Care Issues

Last week, we talked about the durable power of attorney, which enables someone you designate to make decisions when you’re no longer able to do so.  This week, I’ll cover a related topic — how to name a person to make health care decisions on your behalf if you become incapacitated. These advance directives are known as living wills and health care proxies.

First, a short quiz (answers at the end of the article):

1)   A living will is

 a)    A set of instructions that dictate how your property will be distributed if you become incapacitated and can’t express your wishes.

b)   A trust written under a will.

c)    A set of instructions for a health care provider stipulating how much medical care you wish for, either to extend your life or lessen discomfort, in the event you can’t make these decisions for yourself.

d)   None of the above.

2)    A health care proxy appoints an agent to make any and all health care decisions, in effect implementing instructions, on your behalf, in the event of incapacity. True or False.

3)    Some states have enacted Default Surrogate Decision Making Statutes that empower health care professionals to make decisions on behalf of an incapacitated patient who did not execute advance directives prior to incompetence. True or False.


Why these documents are necessary

Health-care decision making is a touchy subject, and you’ve likely come across many legal cases in the news. Here are a few examples.

In 1979, the New Jersey Supreme Court granted permission to Joseph and Julia Quinlan to discontinue their daughter Karen’s respirator—which her doctors believed was prolonging her life in a vegetative state. This case caused several states to enact Natural Death Act Declarations (i.e., living wills).

In 1990, in the Nancy Beth Cruzan case, the U.S. Supreme Court affirmed that a person’s right to refuse treatment is guaranteed by the Constitution; but held that individual states had the right to determine the criteria for providing or withdrawing life sustaining treatment. (Nancy Cruzan, permanently incapacitated from an accident, had discussed her feelings about prolonging life with family and friends, but had not committed her thoughts to writing. Missouri required clear and convincing evidence—i.e., a written document.)

Lastly, in 1998, The Terri Schiavo case was filed in circuit court. After suffering a heart attack, Terri Shiavo sustained massive brain damage and was in an irreversible vegetative state. Schiavo’s husband and legal guardian, Michael, argued that Schiavo would not have wanted prolonged artificial life support without the prospect of recovery and elected to remove her feeding tube. Schiavo’s parents disputed Mark’s claim and challenged Terri’s medical diagnosis, arguing in favor of continuing artificial nutrition and hydration. A seven-year, highly publicized, legal battle ensued before Schiavo’s feeding tube ultimately was removed in 2005.

All of these cases show how important it is create clear instructions about your health care preferences before you become incapacitated.  In addition, they suggest that instructions of a formally appointed health care agent must be followed, as long as such directives are consistent with individual state guidelines.

While definitions vary from state to state, all U.S. states and the District of Columbia have living will statutes which allow individuals to provide instructions regarding life sustaining measures in the event of a terminal illness, including (in some states) coma or persistent vegetative state.

Also, in 1991, the Federal Patient Self-Determination Act was passed, requiring all Medicare and Medicaid health care providers to inform recipients of their rights (under various court decisions and state statutes) to accept or refuse medical treatment and of the right to set up advance health care directives.


Living Wills vs. Health Care Proxies

A living will is a set of instructions for a health care provider, that describes the extent to which measures should be taken (consistent with state statutes) to maintain your life should incapacitation render you unable to express your wishes.  For example, you can decide whether or not you want to be resuscitated in the event of heart failure, or whether you want artificial respiration or intravenous feeding to prolong life.

A health care proxy (also called a health care power of attorney in some states) appoints an agent to make any and all health care decisions, in effect implementing instructions, on your behalf in the event of incapacity (e.g., a life threatening condition, or where you’re unconscious and a treatment decision must be made).

Since the health care proxy grants decision-making power to a surrogate, its scope is broader than the living will, which simply states your wishes in the face of terminal illness. The documents may be drawn separately, or the living will may be incorporated into the health care proxy, depending on state law.

Both directives come into play only when you’re unable to make health care decisions for yourself. Up until that point, you maintain decision-making authority with respect to health care. Usually, you can change or revoke both directives at any time.

Some states have also enacted Default Surrogate Decision Making Statutes, which define a priority of individuals who are empowered to act on behalf of a person who did not execute advance directives prior to incompetency.


Into the Future

These quality of life issues have become further complicated by the controversy surrounding the physician-assisted death movement and ongoing “Death with Dignity” voter initiatives. (One particularly important unresolved issue that could affect the use of living wills is the definition of “suicide” for insurance purposes.)

Despite such controversies, it’s important to make your preferences known.  It’s not just your personal wishes at stake. You can also relieve the emotional and financial burden that may fall on family members if you become seriously ill and unable to communicate and there is no hope of recovery. Advance directives can allow you to maintain autonomy, while providing specific instructions to assure your wishes are carried out to the fullest extent possible.

If you haven’t done so, see a lawyer soon to get these documents done.

Have additional estate planning questions? Contact me at the links below.


Quiz Answers: 1) c; 2) True; 3) False.