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The Living Will and Durable Power of Attorney for Health Care

  • What are advance directives?
  • Answer:

    Advance directives are legal documents in which patients express their wishes about the kind of health care they want to receive should they become unable to make their own treatment decisions. There are two types of advance directives: the living will, and the durable power of attorney for health care. Check with an attorney to find out what is available in your state.

  • What is a living will?
  • Answer:

    A living will is a legal document in which patients are able to state in advance their desire to receive, or to withhold, life support procedures when they are permanently unconscious or terminally ill and unable to make informed decisions.

  • When does a living will apply?
  • Answer:

    The living will applies only when two doctors determine that the patient is either in an irreversible coma or is suffering from a terminal illness and is unable to make decisions for him/herself. As long as a patient is able to make health care decisions, the living will has no effect.

  • What treatments are covered?
  • Answer:

    The living will permits the withholding or withdrawal of any treatment that might be considered life-prolonging or that artificially extends the dying process. Some states have special provisions that allow artificial nutrition and hydration to be withheld or withdrawn when patients are in an irreversible coma.

  • Who can complete a living will?
  • Answer:

    Anyone over the age of 18 years who is of sound mind can complete a living will. To be legal, in most states, it must be witnessed by two adults or can be notarized. Check state requirements to ensure your living will will be honored.

  • Can a living will be revoked?
  • Answer:

    A living will can be revoked by the patient at any time as long as they are mentally competent at the time. The patient can do this any way they choose, such as simply tearing up the living will document, expressing orally to witnesses the desire to revoke the document, or in writing. Health care professionals who witness such revocations will document them in the patient's medical record.

  • What is a durable power of attorney for health care?
  • Answer:

    The durable power of attorney for health care is a document that allows patients to specify in advance who should make health care decisions for them should they become unable to make their own health care decisions. The individual named is often called the agent, attorney-in-fact, surrogate decision maker, proxy decision maker, or patient advocate.

    When a patient is mentally incompetent but not clearly suffering from a terminal illness, the law requires a different procedure. A court, after being presented with proof of incompetence, appoints a legal guardian or conservator to make all decisions, including financial, legal, health related, and more. In contrast, a durable power of attorney for health care may only make decisions about medical care.

  • When does a durable power of attorney for health care take effect?
  • Answer:

    The durable power of attorney for health care takes effect any time the patient loses the ability to make his or her own health care decisions. Unlike the living will, the patient does not need to be terminally ill or suffering from an irreversible coma.

  • What treatments are covered?
  • Answer:

    The durable power of attorney for health care document allows a patient to name someone with broad or specific powers to provide consent or refusal for any type of health care. Durable powers of attorney for health care are very flexible documents, allowing both the naming of an agent to make decisions for the patient when the patient is unable to do so, and the specification of the treatments that the patient wants or does not want to receive.

  • Who can be named as an agent?
  • Answer:

    Anyone 18 years of age or older can be named as the agent except for the doctor (or those employed by the doctor) who is providing care to the patient. The agent named has no legal obligation to serve, and the agent is not responsible for the financial costs associated with treatment.

  • Who can complete a durable power of attorney for health care?
  • Answer:

    Any adult of sound mind may complete a durable power of attorney for health care. Living wills and durable powers of attorney for health care are often prepared without the assistance of lawyers by using standard forms. In most states, the durable power of attorney for health care document must be witnessed by two adults or notarized. Such documents and procedures vary by state so it's important to carefully check what your state requires.

    Also, state legislatures may change the laws related to advance directives for health care, or court rulings may change their interpretation. Therefore, it is wise to review documents from time to time and check for any changes in your state. Information on advance directives for your state can be found at state health department web sites, the secretary of state's web site, or the web sitesof major state health care associations.

  • Can more than one agent be named?
  • Answer:

    Only one agent can serve at a time, but other individuals can be named as successor agents if the first individual named as the agent is not able or is unwilling to serve. And the patient can change the agent at any time, as long as they are competent.

  • Can a durable power of attorney for health care be revoked?
  • Answer:

    The patient can revoke a durable power of attorney for health care at any time and in any manner, such as by simply tearing up the durable power of attorney for health care document, expressing orally to witnesses the desire to revoke the document, or in writing. Health care professionals who witness such revocations should document them in the patient's medical record.

    If a patient does not have an advanced directive for health care, state laws specify which relatives may consent for them and in what order. Therefore, all important documents, including advance directives for health care and wills, should be kept in a safe place known to all close relatives. Signed documents are always best, but they can be misplaced, destroyed, lost, overlooked, or forgotten. It is also important to discuss wishes about end-of-life care with loved ones.

  • How are the living will and durable power of attorney for health care implemented?
  • Answer:

    In most states, both documents require that two doctors determine that the patient has lost the capacity to make health care decisions. A living will has the additional requirement that the patient must be suffering from a terminal condition or is in an irreversible coma.

  • What are some other differences between the durable power of attorney for health care and the living will?
  • Answer:

    The living will simply requires the withholding or withdrawal of life-prolonging treatment whereas the durable power of attorney for health care names a specific agent who is authorized to make all health care decisions if the patient is mentally unable to do so. Specific instructions about certain treatments may be given to the agent in the durable power of attorney for health care, but they are not required.

  • How do health professionals know if a patient has an advance directive?
  • Answer:

    Many hospitals and clinics will ask the patient or family about the existence of advanced directives when they are admitted to the hospital. In fact, some states require hospitals to do this and to offer blank documents if the patient has no advance directives. The existence of an advance directive is documented prominently in the medical chart. Also, health professionals should document any discussions with the patient about their end-of-life desires or treatment preferences in their medical record.

    Immunity
    Physicians and health care providers are immune from civil, criminal, and disciplinary action if they follow the advanced directive statute in good faith and meet its provisions.

    Do Not Resuscitate (DNR) Orders
    Advanced directives are not DNR orders. DNR orders are written by doctors to indicate that a patient should not be resuscitated. The order may be written to reflect a patient's or surrogate's expressed wishes about resuscitation, or because the patient will not benefit from resuscitation. For example, for someone with a living will or durable power of attorney for health care, CPR may be appropriate if they are suffering from an acute life-threatening condition. Patients with advance directives may want aggressive treatment for potentially reversible conditions. Generally, doctors will proceed with such efforts if the patient is not suffering from a clearly terminal condition or in an irreversible coma.

    Points to Remember
    Advance directives only take effect when the patient loses the ability to make his or her own decisions. Before that time, the patient's current expressed wishes will be followed by health care professionals.

    Advance directives do not replace active communication with patients and their families. Patients and families should always be provided appropriate and sufficient information to make informed health care decisions. Patients' expressed preferences about health care treatments should be documented as they evolve during the course of treatment.

    Assessing and attending to patients' spiritual needs are important in quality end-of-life care and should be a routine part of patient care.

    Quality medical care also includes providing patients with a supportive atmosphere in which to reflect on end-of-life choices and to allow their wishes to be communicated to their health care providers and to their families.

WebMD Medical Reference

Reviewed by Kimball Johnson, MD on August 13, 2012

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