法律英语：51 Living Wills and Power of Attorney

by Michael W. Flynn

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed 1 to practice in your jurisdiction 2. Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is living wills and power of attorney as it relates to medical issues. After the legal and moral battle surrounding Terry Shaivo, many Americans reconsidered their medical affairs. Today I will discuss living wills, health care proxies 3, and how a power of attorney relates to them.

So long as you are competent, you have almost unfettered discretion 4 to make your own health care decisions. But if you become incapacitated, your doctor will have broad discretion over your health, and is charged with a duty to do what is necessary to make you healthy. If you do not have any legal documents to express your wishes, or to appoint someone to make healthcare decisions on your behalf, the doctors who attend you will use their own discretion in deciding what kind of medical care you will receive. But many people have their own ideas about what is best for them. This is where living wills and durable 5 powers of attorney come in.

A living will is simply a document that sets out your wishes about what extended medical treatment should be withheld 6 or provided if you become unable to communicate those wishes. In some states, this is called a Directive to Physicians or Healthcare Directive. A living will bears no relation to the conventional will or living trust used to leave property at death; it's strictly 7 a place to spell out your health care preferences. To create a living will, you typically need to be competent, sign the document enumerating 8 your wishes, and have one or two witnesses. In many states such as Georgia, North Dakota and North Carolina, a living will becomes invalid 9 while you are pregnant. In most states, living wills cannot take effect legally unless the patient is medically determined 11 to be in a permanent vegetative state or terminally ill, and unable to communicate medical preferences.

Determining whether a person is in a permanent vegetative state can be difficult. Many living wills require that two doctors who do not work together must agree on your status before a living will takes effect. You can define what “incapacitated” means when drafting by setting forth 12 the terms in your living will. You can also require that your agent consult with a specific person or doctor.

A living will can cover a variety of topics including: transfusions 13 of blood and blood products, CPR, diagnostic tests, dialysis, administration of drugs, the use of a respirator, and surgery. You may specify 14 in your living will under what circumstances you might want certain types of health care. For example if you go into a coma 15 due to kidney failure, you may specify that you want dialysis for only one year, and to stop treatment after that time. You may even direct a doctor to stop giving you food and water at a certain point.

As I discussed in last week’s episode a power of attorney is a document that gives one or more persons the power to act on your behalf. A durable power of attorney gives an attorney-in-fact legal power to make health care decisions for someone who cannot make those decisions for him or herself. A durable power of attorney differs from a living will in that it may direct your agent to carry out the living will's instructions or it may allow your agent to use his or her own discretion. The living will itself also can specify a proxy 16 to help enforce its terms. A durable power of attorney may be used whenever the individual granting the power cannot make his or her own health care decisions; it does not depend on terminal illness or permanent unconsciousness to become effective. Most estate planning attorneys recommend both documents to cover all situations.

The greatest benefit for having these documents is to ensure that your wishes, and not someone else’s, are carried out. When faced with the possibility of your death, your spouse 17 or partner might want to keep you alive at all costs, but you might want to avoid unnecessary physical pain, or limit the financial burden you place on those you will leave behind. If you do not have a valid 10 living will, your wishes might be disregarded.

These decisions are highly personal, and you should consult with your physician and loved ones. But, discuss them now while you are healthy, so you can think rationally and communicate your wishes early.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful 18 Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.

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