Living Wills and Durable Powers of Attorney for Health Care
The Issue: When thinking about planning for end of life decisions, people face highly personal and often difficult decisions. If you have terminal cancer and you know you will die soon, do you want heroic measures taken to extend your life as long as possible? If you are in a car accident and slip into a coma in which you might live for a long time with food and water, do you wish to be kept alive? Particularly following the Terri Schiavo matter, the importance of making one's opinion known on these decisions is imperative. Regardless of how you would make these decisions, what almost everybody does agree on is that they want their personal wishes followed. Few people want these decisions made in a court under emergency circumstances by judges. The Law: If you are conscious and have the capacity to understand and make decisions, you have the right under the law to fully direct your medical care including choosing what medical treatment you will receive. If, however, you become unconscious or lose the capacity to make such decisions, the job of directing your care will fall to others. The law provides a means for you to make your wishes known regarding medical treatment in the event you become unable to make decisions yourself. The law also provides a means for you to let the people caring for you know whether or not life sustaining treatment should be administered under certain circumstances. In California, the two principle means by which a your intentions can be expressed are through a Living Will (Directive to Physicians) or through a Durable Power of Attorney for Health Care. Living Wills and Durable Powers of Attorney: A Living Will (Directive to Physicians) is a document which simply states your desires regarding treatment to be followed when you are unable to direct your own medical care. A Durable Power of Attorney for Health Care is a document which names a trusted person, called an agent, to make health care decisions on your behalf if you cannot do so yourself. The agent must follow the wishes you have expressed in your Durable Power of Attorney for Health Care document and as you have otherwise made known to your agent. The most important issue in choosing an agent is selecting a person who you know will follow your wishes. The person to best serve as your agent may or may not be the closest person to you. Ultimately, you are looking for a person who will do what you have asked them to do. A Durable Power of Attorney for Health Care allows more flexibility than a Living Will (Directive to Physicians) because your agent can make decisions taking into account the circumstances at the time a decision needs to be made. A Directive to Physicians lacks this flexibility but, on the other hand, does not need to rely on an agent. Often a Durable Power of Attorney for Health Care and a Directive to Physicians are combined to allow your wishes to be clearly stated on some issues and to allow your agent to have flexibility on other issues. End of Life Decisions: It is important to think carefully about what provisions you want to be included in your Directive to Physicians or Durable Power of Attorney for Health Care. It helps to think of these decisions in several categories: The Default Position - All Measures Taken to Sustain Your Life. First, absent any direction, doctors will take all measures to sustain your life within generally accepted medical standards. Is this what you want? If so, your wishes should be clearly expressed in either a Directive to Physicians or a Durable Power of Attorney for Health Care which directs that you want your life prolonged as long as possible within the limits of generally accepted health care standards and directs that your health care providers and others involved in your care provide treatment accordingly. Limiting Life Sustaining Measures. Many people wish to include language in their Directive to Physicians and Power of Attorney for Health Care setting forth circumstances under which life sustaining treatment and food or hydration can be withheld or withdrawn. If that is your wish, there are a number of situations you must consider: (1) Imminent Death. If you are diagnosed with a terminal illness and you are going to die within a short period of time, do you want your life sustained? This circumstance is different from losing consciousness or being in a "vegetative state." You know you are going to die. Food and water alone will not sustain your life. Your quality of life may be very high up to the time of your death or it may be very difficult. The question is, if you know that your will die soon, do you want measures taken to resuscitate and prolong your life as your death becomes imminent? If you do not, then your wishes should be clearly expressed directing that you do not want your life to be prolonged if you have an incurable and irreversible condition that will result in your death within a relatively short time. (2) Prolonged Unconsciousness. If you become unconscious and your doctors believe that you will remain that way, do you want to be fed, to receive water, and to receive life sustaining medical treatment? This is the Terri Schiavo situation. In this situation, you could live for a long period of time. You are not necessarily going to die quickly. Should food, water, and life sustaining medical treatment be provided for you? If you would not wish to be kept alive under these circumstances, you should make your wishes known by including them in a Directive to Physicians or Durable Power of Attorney for Health Care which directs that you do not want your life to be prolonged if you become unconscious and, to a reasonable degree of medical certainty, you will not regain consciousness. (3) Some Flexibility. The above statements are absolutes and are made when you execute your Directive to Physicians or Durable Power of Attorney for Health Care. You cannot fully predict the circumstances of your life at the time you may become unconscious. You should carefully consider whether there are any circumstances under which you might wish to have your life sustained should you become unconscious and the medical opinion is that you will remain in that state. Many people choose to give the flexibility to their agent to evaluate the circumstances at the time the decision needs to be made. In this case you should state that you do not want your life prolonged if the likely risks and burdens of treatment would outweigh the expected benefits given your personal values as expressed to your agent. This option allows important circumstances such as your age, state of health, prognosis, personal and religious values to be considered by your agent at the time the decision is made. (4) Pain Management. Finally, whether you want life sustaining treatment provided or not, many people wish to provide for the alleviation of pain, even if it hastens their death. If this is what you want, you need to direct that treatment for alleviation of pain or discomfort can be provided, even if it hastens your death.