MORE THAN A LIVING WILL
One day, someone you love may need to make an important health care decision for you. Whether that person will be able to make the decision may be questionable. If you haven’t specifically authorized your family member to make health care decisions for you, their judgment does not have to be honored. And, even if the hospital, or other health care provider, will listen to your family, what guidance have you given them regarding your preferences for treatment. If you haven’t taken time to put your wishes in writing, you probably haven’t taken the time to discuss the issue with them.
Advanced Health Care Directives are documents designed to grant health-care decision-making authority for one person to another. Moreover, these documents allow a person to spell out how they would wish to be treated, in the event that they cannot make health care decisions for themselves.
When I say “Advanced Health Care Directives,” people often do not understand what that phrase entails. While almost everyone has heard of a Living Will, far fewer understand what a Health Care Proxy is. Both a Living Will and a Health Care Proxy are Advanced Health Care Directives.
A Living Will is called an instructive directive, because it merely states how you would wish to be treated, if you were unable to make health care decisions for yourself. It is only when you are unable to make health care decisions for yourself that Advanced Health Care Directives become effective. Unlike powers of attorney for financial decisions, which are often effective when signed, Advanced Health Care Directives must be in place before you become incapacitated and only become effective when you are incapacitated.
In fact, you must not only be unable to make health care decisions for yourself in order for these documents to be effective, you must also be in one of four conditions. You must be either permanently unconscious, terminally ill, in a condition where only experimental treatment could save you, or in a condition where the expected cost of the treatment outweighs the expected benefit. Only when those conditions are met are Advanced Health Care Directives effective.
As stated above, the Living Will simply states how you wish to be treated. For instance, through a Living Will, you may indicate that you want “life sustaining treatment” or “heroic measures” withheld or withdraw. I would caution, however, that if you use such terms in your Living Will, you better define what you mean by those phrases. “Heroic measures” may mean one thing to one person and another to the next. You may define the terms by example: mechanical resuscitation, a respirator, surgery, etc. In this way, you are providing actual guidance to your family and health care providers.
A Health Care Proxy appoints someone else, called the Health Care Representative, to make health care decisions for you. This may be your wife or your children or a friend; someone whom you trust to make these decisions. When I draft these documents, I indicate that the decisions of the Health Care Representative outweigh anything in writing. In other words, your Living Will is merely a guide for the Representative.
I believe this is best because the Representative is in a better position to make the decision regarding your health care. You may have signed the Advanced Health Care Directives at a time when you where in perfect health; now, years later, your Representative is called upon to make a decision. While it is good that he has something in writing from you regarding your thoughts and giving him the authority to make decisions, the Representative is probably in the better position to make the decision.
Ultimately, how these documents are drafted, or whether they are drafted at all, is a personal choice. There are often strong opinions for having or not having Advanced Health Care Directives. Drafted properly, they can serve as an integal part of a disability plan.