Living Wills |
LIVING WILLS By KENNETH A. VERCAMMEN A living will is your written expression of how you want to be treated in certain medical conditions. Depending on state law, this document may permit you to express whether or not you wish to be given life-sustaining treatments in the event you are terminally ill or injured, to decide in advance whether you wish to be provided food and water via intravenous devices ("tube feeding"), and to give other medical directions that impact the end of life. "Life-sustaining treatment" means the use of available medical machinery and techniques, such as heart-lung machines, ventilators, and other medical equipment and techniques that will sustain and possibly extend your life, but which will not by themselves cure your condition. In addition to terminal illness or injury situations, most states permit you to express your preferences as to treatment using life-sustaining equipment and/or tube feeding for medical conditions that leave you permanently unconscious and without detectable brain activity. A living will applies in situations where the decision to use such treatments may prolong your life for a limited period of time and not obtaining such treatment would result in your death. It does not mean that medical professionals would deny you pain medications and other treatments that would relieve pain or otherwise make you more comfortable. Living wills do not determine your medical treatment in situations that do not affect your continued life, such as routine medical treatment and non life-threatening medical conditions. In all states the determination as to whether or not you are in such a medical condition is determined by medical professionals, usually your attending physician and at least one other medical doctor who has examined you and/or reviewed your medical situation. Most states permit you to include other medical directions that you wish your physicians to be aware of regarding the types of treatment you do or do not wish to receive. All States have declared that competent adults have the fundamental right in collaboration with their health care providers, to control decisions about their own health care. States recognize in their law and public policy, the personal right of the individual patient to make voluntary, informed choices to accept, to reject or to choose among alternative courses of medical and surgical treatment. WHY LIVING WILLS PURPOSE OF LIVING WILLS REQUIREMENTS OF STATUTE HEALTH CARE REPRESENTATIVE WHEN DOES THE ADVANCE DIRECTIVE BECOME
KENNETH A. VERCAMMEN
1. Introduction: As Americans, we take it for granted that we are entitled to make decisions about our own health care. Most of the time we make these decisions after talking with our own physician about the advantages and disadvantages of various treatment options. The right of a competent individual to accept or refuse medical treatment is a fundamental right now fully protected by law. But what happens if serious illness, injury or permanent loss of mental capacity makes us incapable of talking to a doctor and deciding what medical treatments we do or do not want? These situations pose difficult questions to all of us as patients, family members, friends and health care professionals. Who makes these decisions if we cant make them for ourselves? If we cant make our preferences known how can we make sure that our wishes will be respected? If disagreements arise among those caring for us about different treatment alternatives how will they be resolved? Is there a way to alleviate the burdens shouldered by family members and loved ones when critical medical decisions must be made? Living Will: By using documents known as advance directives for health care, you can answer some of these questions and give yourself the security of knowing that you can continue to have a say in your own treatment. A properly prepared Living Will permits you to plan ahead so you can both make your wishes known, and select someone who will see to it that your wishes are followed. After all, if you are seriously ill or injured and cant make decisions for yourself someone will have to decide about your medical care. Doesnt it make sense to •Have a person you trust make decisions for you, •Provide instructions about the treatment you do and do not want, or •Both appoint a person to make decisions and provide them with instructions. A Few Definitions • Advance directive-If you want your wishes to guide those responsible for your care you have to plan for what you want in advance. Generally such planning is more likely to be effective if its done in writing. So, by an "advance directive" we mean any written directions you prepare in advance to say what kind of medical care you want in the event you become unable to make decisions for yourself.
2. Instruction directives - Another way to have a say in your future medical care is to provide those responsible for your care with a statement of your medical treatment preferences. By "instruction directive" we mean written directions that spell out in advance what medical treatments you wish to accept or refuse and the circumstances in which you want your wishes implemented. These instructions then serve as a guide to those responsible for your care. Another term some people use for an instruction directive is a "living will.” 3. Combined directives - A third way combines features of both the proxy and the instruction directive. You may prefer to give both written instructions, and to designate a health care representative or proxy to see that your instructions are carried out. 2. Questions and Answers 1. Why should I consider writing an advance directive/ living will? Serious injury, illness or mental incapacity may make it impossible for you to make health care decisions for yourself. In these situations, those responsible for your care will have to make decisions for you. Advance directives are legal documents which provide information about your treatment preferences to those caring for you, helping to insure that your wishes are respected even when you cant make decisions yourself A clearly written and legally prepared directive helps prevent disagreements among those close to you and alleviates some of the burdens of decision making which are often experienced by family members, friends and health care providers. 2. When does my advance directive take effect? Your directive takes effect when you no longer have the ability to make decisions about your health care. This judgment is normally made by your attending physician, and any additional physicians who may be required by law to examine you. If there is any doubt about your ability to make such decisions, your doctor will consult with another doctor with training and experience in this area Together they will decide if you are unable to make your own health care decisions. 3. What happens if I regain the ability to make my own decisions? If you regain your ability to make decisions, then you resume making your own decisions directly. Your directive is in effect only as long as you are unable to make your own decisions. 4. Are there particular treatments I should specifically mention in my directive? It is a good idea to indicate your specific preferences concerning two specific kinds of life sustaining measures: 1. Artificially provided fluids and nutrition; and 2. Cardiopulmonary resuscitation. Stating your preferences clearly concerning these two treatments will be of considerable help in avoiding uncertainty, disagreements or confusion about your wishes. The enclosed forms provide a space for you to state specific directions concerning your wishes with respect to these two forms of treatment. Fluids and Nutrition. I request that artificially provided fluids and nutrition, such as by feeding tube or intravenous infusion (initial one) 1. ______ shall be withheld or withdrawn as "Life Sustaining Treatment." Directive as to Medical Treatment. I request that "Life Sustaining Treatment" be withheld or withdrawn from me in each of the following circumstances: (Initial all that apply) 1. ______ If the "life sustaining treatment" is experimental and not a proven therapy, or is likely to be ineffective or futile in prolonging my life, or is likely to merely prolong an imminent dying process; 5. What is the advantage of having a health care representative, isnt it enough to have an instruction directive? Your doctor and other health care professionals are legally obligated to consider your expressed wishes as stated in your instruction directive or "living will.” However, instances may occur in which medical circumstances arise or treatments are proposed that you may not have thought about when you wrote your directive. If this happens your health care representative has the authority to participate in discussions with your health care providers and to make treatment decisions for you in accordance with what he or she knows of your wishes. Your health care representative will also be able to make decisions as your medical condition changes, in accordance with your wishes and best interests. 6. If I decide to appoint a health care representative, who should I trust with this task? The person you choose to be your health care representative has the legal right to accept or refuse medical treatment (including life-sustaining measures) on your behalf and to assure that your wishes concerning your medical treatment are carried out. You should choose a person who knows you well, and who is familiar with your feelings about different types of medical treatment and the conditions under which you would choose to accept or refuse either a specific treatment or all treatment. A health care representative must understand that his or her responsibility is to implement your wishes even if your representative or others might disagree with them. So it is important to select someone in whose judgment you have confidence. People that you might consider asking to be your health care representative include: • a member of your family or a very close friend, your priest, rabbi, or minister, or 7. Should I discuss my wishes with my health care representative and others? Absolutely! Your health care representative is the person who speaks for you when you cant speak for yourself. It is very important that he or she has a clear sense of your feelings, attitudes and health care preferences. You should also discuss your wishes with your physician, family members and others who will be involved in caring for you. 8. Does my health care representative have the authority to make all health care decisions for me? It is up to you to say what your health care representative can and cannot decide. You may wish to give him or her broad authority to make all treatment decisions including decisions to forego life-sustaining measures. On the other hand, you may wish to restrict the authority to specific treatments or circumstances. Your representative has to respect these limitations. 9. Is my doctor obligated to talk to my health care representative? Yes. Your health care representative has the legal authority to make medical decisions on your behalf, in consultation with your doctor. Your doctor is legally obligated to consult with your chosen representative and to respect his or her decision as if it were your decision.
It is generally a good idea for your health care representative to consult with family members or others in making decisions, and if you wish you can direct that he or she do so. It should be understood by everyone, however, that your health care representative is the only person with the legal authority to make decisions about your health care even if others disagree. 11. Can I request all measures be taken to sustain my life? Yes. You should make this choice clear in your advance directive. Remember, a directive can be used to request medical treatments as well as to refuse unwanted ones. 12. Does my doctor have to carry out my wishes as stated in my instruction directive? If your treatment preferences are clear your doctor is legally obligated to implement your wishes. unless doing this would violate his or her conscience or accepted medical practice. If your doctor is unwilling to honor your wishes he or she must assist in transferring you to the care of another doctor. 13. Can I make changes in my directive? Yes. An advance directive can be updated or modified in whole or in part, at any time, by a legally competent individual. You should update your directive whenever you feel it no longer accurately reflects your wishes. It is a good idea to review your directive on a regular basis, perhaps every 5 years. Each time you review the directive, indicate the date on the form itself and have someone witness the changes you make. If you make a lot of changes, you may want to write a new directive. Remember to notify all those important to you of any changes you make. 14. Can I revoke my directive at any time? Yes. You can revoke your directive at any time, regardless of your physical or mental condition. This can be done in writing, orally, or by any action which indicates that you no longer want the directive to be in effect. 15. Who should have copies of my advance directive? A copy should be given to the person that you have named as your health care representative, as well as to your family, your doctor, and others who are important to you. If you enter a hospital, nursing home, or hospice, a copy of your advance directive should be provided so that it can be made part of your medical records. The back cover of this brochure contains a wallet size card you can complete and carry with you to tell others that you have an advance directive. 16. Can I use my advance directive to make an organ donation upon my death? Yes. You may state your wishes regarding organ donation. Also you may want to place an organ donor card in your wallet to alert medical personnel. Any card will do. If you decide to make a gift of your organs upon your death please complete the card and carry it with you at all times. For further information regarding organ donation you should contact either an organ procurement agency or your local hospital.
1. Artificially provided fluids and nutrition: 2. C a r d i o p u l m o n a r y Resuscitation (CPR): 3. Life-sustaining measures: 4. Decision making capacity: 5. Health care representative or health care proxy: 6. Terminal condition : 7. P e r m a n e n t unconsciousness: 8. Persistent vegetative state: 9. Incurable and irreversible chronic diseases: 11. Attending physician : Kenneth A. Vercammen is an Edison, Middlesex County, NJ trial attorney who has published 125 articles in national and New Jersey publications on Probate and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. He is Chair of the American Bar Association Estate Planning & Probate Committee. He is also Editor of the ABA Elder Law Committee Newsletter In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, and contested Probate hearings. KENNETH VERCAMMEN & ASSOCIATES, PC
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Monday, October 10, 2011
Living Wills
