financial focus
Living Will: Your Advance Directive for Health Care
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nterest in living will issues has been intensified in recent years, partly because of several publicized court cases. Many of us remember Karen Ann Quinlan, who was in a state of prolonged dying—a coma—for many years. More recently, there was the case of Nancy Cruzan, comatose for seven years after an auto accident and kept alive by feeding tubes. Nancy Cruzan’s parents petitioned the Missouri court for removal of the feeding tubes so that she could die, but the court refused. Its decision was upheld by the Supreme Court, based not on an opposition to the “right to die,” but on the fact that Nancy Cruzan had not clearly expressed the wish to refuse artificial feeding if she became incapacitated. Given more evidence that Nancy Cruzan would not have wanted to be in a vegetative state, a Missouri court ruled the feeding tubes could be removed. Twelve days later on December 26, 1990, Nancy Cruzan died. These cases point out the importance of defining your preferences about procedures you “want” and “do not want” taken if you are near death. A living will, as a written document, is clear and convincing evidence of your wishes for others to use if you are unable to communicate or to make your own decision affecting your health and medical treatments.
Your Rights and the Commonwealth’s Obligation
In our health care system, self-determination is an ethical and common law principle that is supported as an individual’s basic right. You have certain specific rights that help preserve individual control and autonomy: • the right to participate in medical care decisions, • the right to receive complete information about your medical condition, and • the right to refuse medical treatment. Remember, the right to refuse health care treatment is not absolute. The Commonwealth of Pennsylvania has an obligation to: (1) preserve life; (2) prevent suicide; and (3) maintain the ethical integrity of the health profession. On April 16, 1992, the Advance Directive for Health Care Act, commonly referred to as the living will legislation, became law in Pennsylvania. This legislation amends Probate Code, Title 20 of the Pennsylvania Consolidated Statutes, by adding provisions related to living wills and guardianships. As a result, Pennsylvanians can now make a legal document, an advance written declaration, indicating their wishes to initiate, continue, withhold, or withdraw certain life-sustaining medical treatments. This directive is
honored if the individual becomes incompetent or is in an irreversible coma, or is determined to be in a terminal condition.
Purpose of a Living Will
A living will is not a will in the same sense as the document used for estate planning and property transferals. It is a written instruction to a person’s physician about withholding or withdrawing medical treatment that will merely delay death, rather than restoring the person to a functional life. A living will specifies how medical technology should be used to sustain life artificially when an individual has lost competence. These instructions can also request that every life-sustaining effort be made to support life as well as to stop treatment.
Definitions
Advance directive: An advance directive or declaration is a legal term for a living will, a written declaration voluntarily executed to indicate which life-sustaining medical treatments to initiate, continue, withhold, or withdraw. Living will is the terminology frequently used for advance directive. Principal or declarant: The person making the living will. Agent: The person(s) to whom the principal or declarant may give powers to make decisions about health and medical care. Incompetence: The lack of sufficient
capacity for a person to make or communicate decisions about him- or herself. Attending physician: A doctor who has primary responsibility for the treatment and care of the person executing a living will. Health care provider: A person licensed by state law to administer health care in the ordinary course of business or practice of a profession. Life-sustaining treatment: Any medical procedure or intervention that, when administered to a patient, serves only to prolong the process of dying or to maintain the patient in a state of permanent unconsciousness. Lifesustaining treatment includes food and liquids administered by gastric tube or intravenously, or any other artificial or invasive means as specified in the individual’s living will. Permanently unconscious: A term describing an incurable and irreversible medical condition in an advanced stage that will result in death regardless of the use of life-sustaining treatment. The term applies to persons in a persistent vegetative state or irreversible coma or who are terminally ill. Surrogate: A person legally named to make health care decisions for another person. Terminal condition: An incurable and irreversible medical condition caused by injury, disease, or physical illness that will, in the opinion of the attending physician, to a reasonable degree of medical certainty, result in death regardless of the continued application of life-sustaining treatment.
years old, and (2) not the person who signed the living will on behalf of the principal or declarant. In a court contest, a living will prepared with an attorney’s help will probably carry more weight than a selfdesigned living will. The document may be signed before a notary. In Pennsylvania, however, there is no requirement to have an attorney prepare a living will nor does the will need to be notarized. You may cancel or change a living will at any time. It is a good idea to destroy the original and all copies of the living will you wish to revoke or cancel. On the next page is a sample living will containing a list of specific types of medical treatments. It’s merely an example to show you the kinds of information to consider when drawing up a living will.
rabbi, minister, etc.). Keep these people informed of your wishes so that they know how to proceed. Request that copies of your living will and durable power of attorney be placed in your medical files. Review, redate, and resign your living will yearly, and do so at least every five years before witnesses. This forces you to reevaluate your position and your instructions about artificially prolonged life, terminal illness, or permanent unconsciousness. It also indicates to a doctor, hospital, and judge that this is your current declaration or wish.
Canceling a Living Will
You may revoke or cancel a living will at any time and in several ways. Your mental or physical condition is not a factor in this decision. You can revoke a living will by: • simply destroying it; by tearing up, defacing, burning, or otherwise destroying the original and all copies that you have given to others. The idea is to convey the message that you have canceled the living will. • revoking the living will in writing with the statement signed by you or someone else at your direction. • orally revoking the living will to the attending physician or other health care provider, or to a witness.
Important Actions
You may name someone to be a surrogate decision maker. That is, you may designate another person to make medical decisions, if you become incompetent or permanently unconscious. Think about people you trust, who really know your preferences, and who would be willing to act in this role if needed. Talk to this person to decide if he or she would serve as a surrogate and if he or she really understands you and your wishes. It may be that after you consider the process, you will decide not to name anyone as surrogate. You do not need to have a surrogate to execute a living will. Keep the original document where it is safe and will be accessible when needed. Have a copy in your safe deposit box. Give copies to members of your family and to your physician, attorney, and religious leader (priest,
Need for Discussion
People do not like to talk about becoming terminally ill, incapacitated, or dependent. But if they want to make their own health care decisions, they need to have discussions with family members and health care professionals about life-sustaining treatments. Discussion may be initiated by a spouse, parent, or an adult child. Realize that death is a touchy subject for some people. A recent accident that has left the participants severely injured, or
Executing a Living Will
You may execute a living will if you are at least 18 years old, if you are a high school graduate, or if you are married. A living will by-law must be signed by two witnesses who are: (1) at least 18
Sample Living Will
, being of sound mind, willfully and voluntarily make this declaration to be followed if I become incompetent. This declaration reflects my firm and settled commitment to refuse life-sustaining treatment under the circumstances indicated below. I direct my attending physician to withhold or withdraw life-sustaining treatment that serves only to prolong the process of my dying, if I should be in a terminal condition or in a state of permanent unconsciousness. I direct that treatment be limited to measures to keep me comfortable and to relieve pain, including any pain that might occur by withholding or withdrawing life-sustaining treatment. In addition, if I am in the condition described above, I feel especially strong about the following forms of treatment: I ( ) do ( ) do not want cardiac resuscitation. I ( ) do ( ) do not want mechanical respiration. I ( ) do ( ) do not want tube feeding or any other artificial or invasive form of nutrition (food) or hydration (water). I ( ) do ( ) do not want blood or blood products. I ( ) do ( ) do not want any form of surgery or invasive diagnostic tests. I ( ) do ( ) do not want kidney dialysis. I ( ) do ( ) do not want antibiotics. I realize that if I do not specifically indicate my preference regarding any of the forms of treatment listed above, I may receive that form of treatment.
I,
Other Instructions
I ( ) do ( ) do not want to designate another person as my surrogate to make medical treatment decisions for me if I should be incompetent and in a terminal condition or in a state of permanent unconsciousness. Name and address of surrogate (if applicable):
Name and address of substitute surrogate (if surrogate designated above is unable to serve):
I made this declaration on the Declarant’s signature: Declarant’s address:
day of
(month, year).
The declarant or the person on behalf of and at the direction of the declarant knowingly and voluntarily signed this writing by signature or mark in my presence. Witness’s signature: Witness’s address: Witness’s signature: Witness’s address:
knowledge of a comatose individual, may be used to introduce the topic of living wills. Ask: “What would you want done under those circumstances?” Indicate: “I need to talk about it.” Share your feelings about your concerns. If the other person is reluctant to discuss it, don’t insist, but bring up the topic at another time.
Federal Legislation
On December 1, 1991, the federal government passed a mandate requiring health care facilities, such as hospitals and nursing homes, to inform patients about their options for making a living will and durable power of attorney. Any facility receiving medicare and/or medicaid funds must comply with this law.
Resource
Choice in Dying, 250 West 57th Street, New York, NY 10107, (212) 246-6973, is an excellent organization involved in the right-to-die movement. They offer educational materials and a wallet-sized, “mini” living will. You may also keep a copy of your living will in their master file. There is a $25 contribution.
Prepared by Marilyn M. Furry, Ph.D., Associate Professor, Agricultural and Extension Education, Family Resource Management Programming. Thanks to John C. Becker, Associate Professor of Agricultural Law, and member of the Pennsylvania and Centre County Bar Associations, for reviewing this publication. This document is not intended to provide legal advice. Rather, it is designed to provide basic information about living wills. Information in this publication is based on the laws in force on the date of publication. Should you have additional questions, please seek legal counsel. Penn State College of Agricultural Sciences research, extension, and resident education programs are funded in part by Pennsylvania counties, the Commonwealth of Pennsylvania, and the U.S. Department of Agriculture. This publication is available from the Publications Distribution Center, The Pennsylvania State University, 112 Agricultural Administration Building, University Park, PA 16802. For information telephone (814) 865-6713. Issued in furtherance of Cooperative Extension Work, Acts of Congress May 8 and June 30, 1914, in cooperation with the U.S. Department of Agriculture and the Pennsylvania Legislature. T. R. Alter, Director of Cooperative Extension, The Pennsylvania State University.
Remember:
• The decision to execute a living will is your choice, based on your moral and ethical belief system. • You can change or cancel a living will once it is written. • Review your living will yearly. • Discuss your living will—as well as your feelings and beliefs about lifesustaining and life-prolonging medical care—with relatives, trusted friends, spiritual leaders, and doctors. • Your living will may not be honored in another state; however, the written statement at least provides clear evidence of your wishes and intent.
This publication is available in alternative media on request.
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