Healthcare Directives: Preventing Serious Legal Proceedings
Another Living Will Sample
You might wish to open this sample Living Will in another window to follow along with this discussion. This Living Will is similar to the previous sample, with some differences. The paragraphs are numbered to make it easy to follow along with the discussion, but it is not necessary to use these numbers in your document.
Paragraph 1: This statement gives you one option with respect to desired medical treatment. It essentially describes the condition you must be in to authorize certain limitations on medical treatment. The condition described here should be used if you have a "terminal condition." Since the term is not described with any specifics, you should first make sure you are comfortable with this definition. Typically, although it is not guaranteed, you will be leaving it to a physician(s) or healthcare institution to define your condition as terminal.
This paragraph provides that the only type of medical treatment you wish, once you have a terminal condition, is that you be given comfort care, which generally means pain medication or related treatment.
This statement also provides a clear directive to the physician or hospital that you do not want the date of your death artificially delayed for any reason.
Paragraph 2: This paragraph provides another alternative in specifying for your treatment. This paragraph can be selected, even if you have selected paragraph 1, but you should understand there are significant differences between Paragraph 1 and Paragraph 2. First and foremost, Paragraph 2 expands the definition of the condition which you must reach to invoke the provisions of this Living Will. Recall that Paragraph 1 simply stated "terminal condition". Paragraph 2 provides for a "terminal condition" but also allows for your condition to be considered an "irreversible coma" or a "persistent vegetative state." The key difference is that an "irreversible coma" and a "persistent vegetative state" may not always be terminal conditions. As such, you can be in either of these two and not have a terminal condition. Paragraph 2 gives a wider variety of medical reasons to withhold treatment and careful thought should be given to expanding the definition from Paragraph 1.
Furthermore, in Paragraph 2, you should be aware that you are giving more power to your physicians or healthcare professionals, since you are specifying an "irreversible coma" or a "permanent vegetative state" that your doctors reasonably feel will be irreversible or incurable. This means that your doctors will have the burden of making sure they are acting "reasonably" in diagnosing your condition as "irreversible" or "incurable." Again, this discussion is not meant as a recommendation, but is simply a suggestion to give this some thought to make sure that you are comfortable with your doctors making this decision.
In the event you are in one of the three medical states set forth in Paragraph 2, this section goes on to explain your specified treatment. This form gives you three choices and one or more may be checked once you have considered them. Before deciding which of the three, if any, you desire, it would be fitting to remember that your condition must be one of the three set forth above, for the hospital or doctors to withhold these treatments. If your condition is suffered due to a serious car accident, with no determination as to your condition yet made, you are not authorizing the withholding of any treatment which might help you recover. It is only after the emergency is over and a diagnosis has been made that one of these three conditions exists, that the following treatments will be withheld.
The first is CPR, which includes a number of artificially administered treatments in an attempt to revive you. By checking this box, you are specifying that you do not want this type of treatment.
The second is artificially administered foods and fluids. This is perhaps the most common medical treatment which can be authorized to be withheld. It may be one of the most difficult decisions to make, since it is a medical certainty that without food and water, you will surely not survive, no matter what your diagnosis is.
The third option is whether you wish to go to the hospital. This should be given careful consideration for a number of reasons. For example, if you are seriously injured in a car accident and in a coma when they rescue you at the scene, you might not want the persons treating you or rescuing you to make any determinations about your future at the scene of an emergency. Again, while a doctor would have to be present before these instructions could be followed, it would seem to be much better practice to at least enable your treaters to get you to a hospital, stabilize your condition and run a series of objective, non-emergency tests to make certain that your condition is, in fact, "irreversible" or "incurable." Again, the preference is yours, but the purpose of this discussion is to help you think through your options before these situations arise.
Paragraph 3: Of course, this statement deals only with a pregnant woman's desires, although involving the father in this decision might be helpful to avoid a future fight, in the event that the father disagrees with the stated wishes of the pregnant mother. This type of pre-planning will ensure that your estate is not involved in a protracted court battle over your care, as it impacts the unborn child.
The manner in which this statement is written would enable you to be kept on life-sustaining medical treatment if there is any possibility that the unborn child will develop to the point of live birth. This statement, however, contains a number of potential issues which ought to considered. First, the use of the word "possible" might mean that any hospital or doctor would opt to keep you on life-sustaining measures, since they might be afraid of a court battle in which other doctors would argue "of course birth was possible." To be safe and to protect their interests, not yours, they would, in many instances, not withhold life-sustaining measures.
Also a potential problem in this statement is the phrase "known to be pregnant." This could potentially cause the healthcare professionals to conclude that if there is any possibility that you might be pregnant, they might continue to provide treatment for a period of time, until it is finally known that you are not pregnant.
Paragraph 4: This statement cannot be used in conjunction with any of Paragraphs 1, 2, or 3 above, although 1, 2 or 3 can be used in any combination by themselves. This statement is a directive for the actual use of every life-sustaining treatment, until it is "reasonably" determined that the condition is "terminal" or "irreversible and incurable" or you are in a "permanent vegetative state." If you intend to use this paragraph, be sure that it does not conflict with the other paragraphs which you may have considered.
As an illustration of a possible conflict, compare Paragraph 1 and Paragraph 4. Paragraph 1 specifies that the only condition which can invoke this Living Will is a "terminal condition." Paragraph 4 sets forth a number of conditions aside from "terminal condition."
A more subtle difference between Paragraph 1 and Paragraph 4 is the phrasing of your desires. Paragraph 1 suggests that you do not want your life prolonged and that no treatment be given when it is determined that a "terminal condition" exists. However, in Paragraph 4 by stating that you want every life-sustaining measure until it is determined that you have one of the conditions, a different interpretation of your wishes may arise. By using Paragraph 4, it might suggest to a doctor that you are very concerned about treatment not being discontinued too early, and that doctor might allow more treatment to occur to make certain that he/she can reasonably conclude that one of the conditions specified is present. There is no right or wrong way. You simply ought to decide where the emphasis to the doctors or hospitals should be in your Living Will.
Also, while there is no space for it, you can construct you own provisions or add your own desires. If you do, however, be aware of several issues. First, the doctors or hospitals must be able to understand your wishes to carry them out. Remember that when in doubt, they will likely err on the side that keeps them from any legal troubles. This may not be what you want.
Second, you cannot be sure that the provisions you add will not adversely affect the validity of your entire Living Will under your state law. It is important not to add a provision that renders the entire Living Will useless. Again, consultation with an attorney would make certain your Living Will does not pose such a problem.
Third, you should also be sure that your provisions are clear and that they do not have words that may cause confusion, such as "possible." In the explanation, we engaged in an analysis to determine whether a particular provision met your needs. You might consider using this same type of analysis to determine if any such new provision that you want to include will solve problems, not cause them.
Fourth, be sure to consider the persons who might have to make these decisions or authorize the physicians' actions should this ever happen. Any such condition will not be a pleasant experience for your loved ones, and you can do them a great service by considering the effect of what you want on them.
Finally, remember that attorneys are generally engaged in drafting specific provisions to satisfy certain goals everyday. Should you really feel the need to draft a special provision, you most certainly ought to do so only with the help of your attorney. Remember, the purpose of this analysis is to be a better client, not your own attorney.
Paragraph 5: This is a statement that you understand the nature of what you are doing and that you are mentally competent to make such decisions.
Paragraph 6: This signature line enables you to sign your name and enter the date on which you have signed this document. Be sure to recognize that this Living Will requires two witnesses to actually witness your signing and a notary to witness your signature. You cannot sign this document without the presence of a notary and two witnesses. Remember, your state law may require a different form of signing. To be certain your document will be considered valid, you must follow your state's laws.
Paragraph 7: The witnesses' statements are for the purpose of having the witnesses state that they are of sound mind, that they observed the Declarant and that they believe he/she is of sound mind. The witnesses also state that they are not relatives, that they will not benefit from the estate of the Declarant, that they are not healthcare professionals, and that they do not have any claims against the estate.
The purpose of this Witness statement is important. As the Declarant you should carefully select your witnesses. This shows the need for important advance preparation of this document. For example, if you waited until you were admitted to the hospital, you might have to rely on a person in the next hospital bed or room to be your witness. Aside from the obvious that they may not be well enough to attest to your sound mind if the need arose, there is the more important question as to whether you would even be able to find that witness to testify in court some years later, if necessary.
Remember that if there is any possibility that legal action could be brought by anyone to question your competency to make this Living Will, you will feel much better about your case and your wishes being upheld, if you have selected two witnesses who make a prominent or truthful appearance should they ever have to testify in court or in any other legal proceeding.
Paragraph 8: This is a standard Notary Public attestation clause. It should be completed by the notary at the time you have signed the document and it should be signed by the notary. The notary should also place their stamp or seal on the document for authentication purposes. You should remember that the notary is also a potential witness and could be called to testify about whether you seemed competent at the time, whether you were acting erratic or whether any person appeared with you and appeared to be attempting to influence you or to force you to sign this document.
Healthcare Directives: Preventing Serious Legal Proceedings
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