People sometimes confuse a Living Will with a Will. A Living Will is only in effect while you are alive, and it spells out what type of health care you want or do not want to receive if you become terminally ill or permanently unconscious. On the other hand, a Will takes effect after you die and provides instruction about how your property is to be divided after your death.
A Living Will is effective only when you are not able to make health care decisions on your own. It tells your family, doctor, the hospital and others what kind of treatment you want when you are terminally ill.
The Living Will may authorize withholding of or terminating medical procedures related to life support, including such things as use of feeding tubes, respirators, cardiopulmonary resuscitation (CPR) and intravenous therapy when two physicians agree you cannot recover.
A Living Will also may include a Do Not Resuscitate (DNR) comfort care order. A DNR order means that you do not want to be revived or have cardiopulmonary resuscitation performed on you if your heart stops beating or you stop breathing.
Whether your Living Will includes those orders mentioned above or not is up to you. Your Living Will may include some orders or instructions and not others.
A Living Will never allows your doctors to stop giving you "comfort care." They must continue to give you medical and nursing care that is meant to make you comfortable and to relieve you from pain even if you have decided that you do not want life-sustaining treatment administered to you.
A physician cannot withhold or stop feeding you or giving you liquids unless your Living Will specifically authorizes the physician to do so.
You should have a Living Will prepared at a time when you are not in any immediate medical crisis and have plenty of time to carefully consider what kind of treatment you want to get.
Durable Power of Attorney for Health Care
Whether or not you have a Living Will, you should consider a Durable Power of Attorney for Health Care (Health Care POA).
A Living Will is not a Health Care POA. A Living Will gives instructions on how you wish to die if you are in a terminal state. In a Health Care POA you designate someone to make your health care decisions if you are unable to make them yourself.
You give the person you name the power to carry out the decisions you stated in your Health Care POA. It is important to discuss your views about health care and what you intend with the person you choose.
If you are able to make your own health care decisions, the Health Care POA has no effect.
In order for the person you designate to make health care decisions for you, your attending physician must determine that you have lost the capacity to make informed health care decisions for yourself. It can be used if your mental capacity is diminished permanently or just temporarily, or if you are unconscious.
The Living Will and Health Care POA must be signed by you in the presence of two witnesses OR be notarized. Witnesses may not be relatives, the person you designate to make your health care decisions, your physician or the administrator of a nursing home where you are a patient.
If you do not have a Living Will or a Health Care POA to enable your agent to make decisions for you, you must be permanently unconscious for 12 months or longer before your physician may stop any life-sustaining treatment. Even then, or if you are in a terminal condition, consent to stop life-sustaining treatment must be given by those authorized by law to give it and must be consistent with any expressions of your wishes you made while you were able to state those wishes.
If you did not express your intentions, the consent must reflect what your intentions would have been if you had made them known.
Whether you need a Living Will and/or a Durable Power of Attorney for Health Care is a very personal matter. Your decision should be made after you examine your own thoughts on the matter.
Whatever you decide, it is best to discuss your concerns with your family or friends and a lawyer. If you obtain forms that some organizations are providing, read the explanations very carefully so that you are sure you understand what they mean before you sign.
You should speak with a lawyer if there is anything in the forms you do not understand. If there is something in the forms you would like to change, a lawyer can prepare documents that meet your needs.
Do not sign any document if it contains anything with which you disagree or which you do not fully understand.
If you are a low-income person 60 or older, Legal Aid can help you with your Living Will and/or Durable Power of Attorney for Health Care.
This article was compiled from articles appearing in the January-February 2008 issue of The Alert by Jennifer Becker, Esq., staff attorney in the Painesville office of The Legal Aid Society of Cleveland. It is reprinted with permission from The Alert, a publication of The Legal Aid Society of Cleveland.
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