Living Will – Advance Care Directive

A living will is legal document (live, advance care directive or advance health care directive), specific type of power of attorney or health care proxy, defines your exact medical directive for minimal, noninvasive or not accepting any treatment, when you are unable to make medical life and death decisions (desire for voluntary passive euthanasia), usually when your condition is unresponsive, unconscious, permanent coma or terminal. Also, provides specific directive as to the course of treatment provided by a caregiver (or hospital facility) or prohibiting treatment, may include discontinuing food and water (hydration). Optional in a living will, disregard any directive if the declarant is pregnant. Life support measures would be maintained during the term of the pregnancy. Also, living will is based upon your own philosophical and religious beliefs. A valid or unquestionable living will document should define the types of circumstances, when it shall become effective, including a checklist of treatment or support options desired. Also, prepared when your mind is alert or proper mental capacity, not influenced by medication or alcohol and not persuaded by anyone. If any of these undo influences are proven in court, a living will can be nolified. A lawyer or attorney is best knowledgeable to prepare a living will. Some online websites have documentation to print a living will.

Healthcare Power of Attorney is a legal document, supports a living will by appointing a surrogate, confirm your medical wishes, when you are temporarily, permanently incapacitated or have a serious illness, unable to communicate. The document is valid, despite not having a terminal illness. The directive of the power of attorney must be consistent with a living will are else the living will can be declared invalid. The person that is assigned to make medical decisions on your behalf, according to this legal document, should understand your wishes, prior to any unfortunate future medical situation. This person can inform your physician or doctor to proceed with medical treatment or discontinue any treatment. An alternative person should be named in Healthcare Power of Attorney, in case the first person is unable for any reason or deceased to make important medical decision, on your behalf. Certain States have specific requirements or no legal statute, regarding the preparation and validity of a living will.

Some States have laws regarding a living will or no specific statutes:

State of Michigan does not specifically have a living will statute, but recognizes the execution of a living will, prepared in another state and combining that declaration, recognizing of a health care advocate, named by the recipient, that is currently incapacitated, who will validate the patient wishes. When preparing the documentation for naming an advocate for the recipient, two witnesses are necessary requiring their signature. Under Michigan law, a witness to a patient advocate designation, “shall not be the patient’s spouse, parent, child, grandchild, sibling, presumptive heir, known devisee at the time of the witnessing, physician, or patient advocate or an employee of a life or health insurance provider for the patient, of a health facility that is treating the patient, or of a home for the aged as defined in section 20106 of the public health code, 1978 PA 368, MCL 333.20106, where the patient resides. A witness shall not sign the designation unless the patient appears to be of sound mind and under no duress, fraud, or undue influence.” This document should be notarized, validating the signatures, and ensuring its acceptability by medical personal in case of an emergency situation.

In the state of Florida, two witnesses are necessary to provide signatures, validating a living will. The assigned surrogate may not serve as a witness. Also principal spouse or blood relative is not acceptable to serve as a witness. Florida law does not require a living will to be notarized, but is recommended. During the triumphed and exhausting turmoil over the Terri Schavo’s life and death case, broadcast on various networks, from St. Petersburg Florida, leading up to her death in 2003. The question remained uncertain for some time, if her husband had the legal right to instruct the health care facility to have his wife’s feeding tube removed, reflected upon her wishes to him. She did not have a living will to support his claim. After the courts heard legal arguments, and received petitions in favor and against removing Terri Schavo feeding tube, court ruled in favor of her husband. In 2001, Florida legislatures passed a major change to the statute of a living will, included “end stage condition” or “persistent vegetative state” (PVS – condition of severe brain damage. In a coma, progressed to a state of wakefulness without detectable awareness), besides ‘terminal illness,” removing life support as a condition stated in a living will. Controversy if this condition is irreversible.

In 2002, according to Robert Wood Johnson Foundation study (The nations largest philanthropy devoted to improving health and health care, supporting training for its members, education, research and projects that demonstrate effective ways to deliver health services, especially for the most vulnerable of those living) concluded 15 to 20 percent of the U.S. population had a living will. During Schavo controversy, sixty-nine percent of the population thought about getting a living will and thirty-seven percent of Americans said they had a living will. Regardless of age (usually 18 years or older) or health status, preparing living will is advisable. Certainly, as reported in many news events, young adults (teenagers) can be diagnosed having a terminal illness or unfortunate severe accident can occur. Some medical conditions may prevent a person, from orally expressing their desire for specific treatment or discontinuing life support treatment.

In 1990, the Supreme Court heard legal arguments in the case of Cruzan v. Director, MDU.
The litigants presented arguments in favor and against, supporting the termination of artificial nutrition and hydration treatment of a patient in vegetative state, according to the patient living will. Chief Justice Rehnquist writes for the Supreme Court’s majority opinion, holding that “a State may apply a clear and convincing evidence standard [of the patient’s wishes] in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state,” and that the Constitution gives “a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.”

Steps taken to enhance or validate a living will. The declarant of a living will should inform their family, friends and doctor of their intended wishes, prior to any unforeseen medical illness or terminal condition. A copy of the living will should be made available to the recipient family, physician and friends. Make certain your family and friends agree to follow your instructions, according to your living will, regardless how anyone having a difference of opinion. Choose a surrogate, who will carry out your wishes, and substitute. Names of surrogates should be known family and friends. The living will document should be easily be accessible any time, when necessary, and placed in a safe and secure location. Periodically up date the information of your living will, as you get older, ensuring no doubt that your desires are current, and the most recent living will is valid.