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Living Wills & Advance Medical Directives 101

An excellent list of things to consider when deciding whether an advance medical directive is right for you.

As the case of Terri Schiavo, the severely brain-damaged Florida woman, winds its way through the courts, doctors and patient advocates are calling on people to create living wills, documents that detail the kind of medical care they would want in case they can't voice their own wishes.

Some doctors say living wills are only a good start. They can't cover all of the potential what-ifs and medical gray areas that can arise. Also, some recent research shows that doctors won't follow them to the letter. In a study published last year in the Archives of Internal Medicine, doctors were asked to consider six hypothetical medical cases. Overall, 65% of the decisions the doctors made were contrary to patients' advance directives.

Your State's Directives "Living wills don't reflect the complexity of the decisions. A patient who had a living will that stated that she didn't want to be put on a ventilator to help her breathe. The woman's daughter, however, wanted her to continue with the treatment. While the patient did have serious dementia, she was expected to recover. The hospital gave greater weight to the woman's prognosis and her daughter's wishes and decided to give the woman a ventilator. She did recover and lived for another two years.

Living wills are still important, however, especially since they can communicate your feelings about what kind of life is worth living to your family. It can be critical if family members don't agree on your treatment, as has been the case with Terri Schiavo; her husband has requested to have her feeding tube removed, while her parents have sought to keep her alive in a protracted legal battle. A U.S. District Judge in Florida said Monday that he wouldn't rule immediately on Ms. Schiavo's parents' request for an emergency injunction to keep her fed.

Your Will Living wills sometimes convince families to stop futile treatment. Often it is out-of-town loved ones who initially are adamant about continuing therapies. Someone remembers that the last time they saw Mom she was getting around and making pies. If you have a person's advance directive, there's no doubt.

Doctors say the more important decision, however, is creating a health-care-proxy or power-of-attorney document. This designates a person, such as a spouse or trusted friend, who can legally act as your agent, making medical decisions for you if you are incapacitated. Still, most Americans haven't done this. In a 2003 survey conducted by AARP, only two in five adults age 45 or older had a durable power of attorney for health-care decisions.

The best thing you can do is designate on paper a surrogate decision maker. Talk to your spouse, your significant other, your mother, and give that person a sense of what you would want.

The Latest News An advance medical directive typically includes both a health-care proxy and a living will. The living-will portion "spells out what you want or don't want when you are seriously ill and likely to die.

The laws governing these documents vary by state, including rules about who can and cannot be a witness when the documents are signed. For instance, California requires two witnesses for health-care-proxy documents -- but the person you have named as your health-care agent or backup agent can't be one of them.

Health-care-directive documents are generally available through hospitals or state medical associations, and the particulars vary. Some forms simply ask if a person does or doesn't want life-prolonging treatment if he or she is considered terminal or unlikely to regain consciousness. Some ask whether a person would want specific life-prolonging treatments, including ventilators, artificial nutrition, kidney dialysis and artificial resuscitation.

Before signing the documents, it is smart to check with a lawyer to make sure you know the proper witnessing requirements and that the document clearly expresses your wishes. Many people have religious considerations about end-of-life decisions or organ donations, for instance, that might not be reflected in a generic state form. Beginning April 1, the National Hospice & Palliative Care Organization will have all state forms available at the following web site: www.caringinfo.org.

Sometimes the directives can contain nonmedical instructions. Some individuals have specific instructions regarding grooming and fresh flowers in their rooms, and certain kinds of music being played. Also you should consider whether you would want to take part in experimental procedures.

If you have homes in multiple states, check with your lawyer to make sure your medical directives comply with laws in all those states. Be sure your agent has authorization to access medical records under the Health Insurance Portability and Accountability Act (HIPAA).

Once the documents are signed, give copies to your doctors, your hospital, your agent -- and backup agent -- and other family members or close confidantes. Make sure to sit down and talk about your wishes with the person you have named as your agent.

We encourage our clients to periodically refresh their health-care directives. If your health-care proxy dies, gets sick or moves away, you will need to designate someone else. Living wills also need to take into account medical advances that can turn what once was a terminal or irreversible condition into something treatable.

Please do not hesitate to contact us if we can be of any assistance to you or your family.