Living Wills and Other Health-Care Directives
Hanson, Randall K, The CPA Journal
An issue that has gained national and international attention involves the medical profession's ability to sustain life almost indefinitely through sophisticated life support technology. Of course, many people are concerned that if they become permanently comatose or terminally ill, that they will be artificially kept alive causing enormous costs and significant emotional distress for family members. An accident victim who is brain dead, but kept alive is tragic, yet not an uncommon incident.
Without written directives in many states, it is very difficult, time consuming, expensive, and emotionally devastating to cease life support procedures, even if the life sustaining efforts are clearly futile. Without directives from the patient, doctors are simply afraid to cease life support techniques for fear of litigation. Adding to the frenzy is a recent highly publicized case where a man refused to pay a nursing home after the nursing home refused to take his wife off a feeding tube. Although there were no formal instructions, the husband asserted that his wife wished not to be supported in that manner. In the ensuing litigation, the husband was held liable for the continuing costs since there was no written directive authorizing discontinuation.
Almost every state now recognizes medical advance directives by individuals. Advance directives take many different forms, but they basically tell the attending physician what kind of care the patient would like to have if he or she becomes unable to make medical decisions. Advance directives are becoming more common. Federal law now mandates that hospitals inform patients about advance directives when they enter a hospital. This is indicative of how common these directives have become.
While there are many different types of advance directives, there are two directives that are most commonly used. They are "living wills" and "durable powers of attorney for health care." These directives accomplish distinctly different objectives.
The first concept to be completely clear on is that a living will is not in any way similar to a testamentary will and should not be confused with an ordinary will. A testamentary will, among other things, provides for the disposition of property upon death, provides for the appointment of a personal representative, and potentially names a guardian if the testator has minor children. A testamentary will typically has nothing to do with advance directives, since a will does not become effective until after death has occurred. By contrast, advance directives take effect before death.
A living will is probably the most widely recognized of all advance directives. A living will provides specific instructions which will be followed if a person becomes terminally ill, permanently unconscious, or conscious with irreparable brain damage. The basic purpose of a living will is to retain control over whether a life will be prolonged by life support methods after having being diagnosed as being terminal and incurable. It is basically a declaration of a desire for a natural death.
In a living will, the writer is able to describe the kind of treatment he or she desires to have in certain situations. It is common to expressly allow a doctor to terminate extraordinary means of life sup port, including the withholding of artificial nutrition or hydration. It is very important to understand that a living will does not allow the selection of someone to make decisions on behalf of the infirm; it is a means to merely express preferences while the person is still able to communicate. …