As we age, it becomes more and more important to ensure that our preferences regarding end-of-life care are known and respected. One legal option is to establish an advance directive such as a living will. Below is information on the types of advance directives, how they can be helpful in an emergency situation, and the overall process should you decide to establish an advance directive or living will.
What is an Advance Directive?
An advance directive is a type of legal document that comes into play if you are in a situation where you cannot make healthcare decisions for yourself. They Advance directives are useful because they can help eliminate confusion in emergencies as well as ensure that your wishes are known and honored. There are two major types of advance directives:
•Durable Power of Attorney: Also known as a health care proxy, this is a legal document that assigns one person to make healthcare decisions for you if you are unable to speak for yourself. This must be someone that you trust to understand and honor your wishes.
•Living Will: This is a different type of legal document that specifies which medical interventions life-sustaining measures you do or don’t want in case of a life-threatening emergency. The life-sustaining measures is can include the insertion of feeding tubes, being placed on a respirator, and the use of intravenous fluids. and even organ and tissue donation.
What is the difference between a Living Will and a DNR?
While a living will can specifyies your wishes regarding life-sustaining measures, a DNR (Do Not Resuscitate) specifies your wishes regarding life-saving measures, such as CPR or the use of a defibrillator,. Iif you don’t want to be resuscitated, you need a separate document called a DNR (Do Not Resuscitate). , which A DNR is a medical document, as opposed to a legal document, that requires a physician’s signature in order to be effective.
If you have a signed DNR, it tells medical personnel not to try to save your life if you go into cardiac or respiratory distress and not to try to bring you back if you die. DNRs are most common among elderly individuals and/or people suffering from a chronic illness. They view a DNR as a way to preserve their dignity instead of prolonging their suffering. A physician will only sign a DNR if the patient is mentally competent.
How do these documents affect what happens should an emergency occur?
As mentioned before, these documents are extremely important for eliminating confusion and ensuring that the patient’s wishes are respected. This is particularly true in the case of a DNR—since it is a medical document, medical personnel at a hospital would be able to access it quickly in the case of an emergency and would know to honor your wishes. You would also want a copy easily available in your house should EMTs be called to your home. Without the DNR, EMTs are legally required to employ life-saving measures.
When it comes to advance directives and living wills, fewer cases better illustrate the importance of a written advance directive than the case of Terri Schiavo. When she collapsed in her home on Feb. 25, 1990, and was subsequently diagnosed as being in an irreversible persistent vegetative state, Schiavo didn’t have a living will specifying her wishes regarding life-prolonging measures. When her husband Michael Schiavo petitioned the court in 1998 to remove her feeding tube, stating that Schiavo wouldn’t want her suffering to be artificially prolonged, it sparked a legal battle between Michael Schiavo and Terri’s parents that dragged on until Schiavo’s feeding tube was removed for the last time in 2005.
Schiavo’s public, years-long, legal battle brought the issue of the importance of advance directives to the national forefront. The case polarized the nation, but its legacy remains clear: you need to put your wishes regarding life-saving and life-prolonging measures legally in writing so that your care isn’t left up for the courts to decide.
Are Advance Directives always followed?
Unfortunately, there are rare cases where healthcare workers may choose to ignore an advance directive, as few states prohibit them from doing so if it is in accordance with their professional judgment. If your legal and/or medical documents include a DNR or request withholding of certain life-preserving measures, medical professionals are more likely to honor your wishes.
However, if a medical doctor determines a patient’s quality of life to be too poor to justify life-preserving measures, then they are more likely to deny such measures even if the patient’s advance directive and family members request them. This is most common in patients who suffer from some form of dementia. At the moment, only 12 states have laws that protect all patients’ wishes.
What is the process for establishing a Living Will or Advance Directive?
Establishing a living will or another type of advance directive requires filling out and signing the appropriate forms (usually in front of witnesses), and each state has different requirements. An attorney can assist you in this process to ensure that you have all of the appropriate paperwork filled out correctly and that it expresses your needs. Once your advance directive is established, you should take the following steps:
1. Keep the original for yourself in a safe, but accessible, location;
2. Distribute copies to your medical providers;
3. Talk to family members and trusted friends about your wishes and give them copies;
4. Carry a card in your wallet that states that you have an advance directive and where to find it;
5. Keep a copy with you when traveling; and
6. Review your advance directive every year so that it remains up-to-date.
Similar measures should also be taken if you decide to establish a DNR. You should also have a copy easily visible in your home (such as on your refrigerator) and you can also purchase a medical bracelet that states that you have a DNR.
Advance directives and living wills are an important component in making sure your wishes are known in the event of an emergency. If you have any questions regarding advance directives or end of life care, contact Hoyt & Stanford and we will walk you through the process.
Ted is an Attorney & Counselor at Law, and Board Certified Tax Law Specialist. His primary areas of practice are Tax Law & Estate Planning and is located in Lafayette, LA