Addressing health care in your estate plan: advance medical directives and living wills

By Connie Fontaine

The American College

It is always prudent for estate owners to include arrangements for health care decision making in their estate planning.

It is always prudent for estate owners, prior to advanced age, to have arrangements in place for health care decision making. Fundamental to the decision making process is a statement declaring the owner’s intent for the medical treatment he or she wants should the individual become permanently and irreversibly incapacitated, in a persistent vegetative condition or terminally ill.

Modern medicine can keep a person alive by artificial mechanisms even if an individual is unconscious and essentially nonfunctional. Estate owners need to create directives for health care professionals should they ever be in a situation where death would be imminent and recovery highly improbable without the intervention of modern medical technology.

Durable powers of attorney for health care, do-not-resuscitate orders, five wishes, and living wills fall within a document category referred to as advance medical directives. Although a relatively small percentage of the American public have some type of advance medical directive, these documents are receiving more attention due to new legislation, court decisions, practical experience and a growing recognition that health planning is as important as wealth planning.

Famous cases like the one involving the 41-year-old Florida woman Theresa Schiavo, who lived in a persistent vegetative state for more than 14 years after suffering a brain damage resulting from cardiac arrest only serve to increase the awareness of the need for clear and convincing communication about one’s medical choices. Other instances where living wills have become the subject of public attention in recent years due to increased concerns about health and financial matters include the Cruzan v. Director case in Missouri as well as the physician-guided suicide cases in Michigan.

For some individuals, advances in medical technology that prolong life have increased fears of lengthy artificial life support and family financial disaster. Consequently, different types of advance medical directives have evolved in response to these situations.

By executing an advance medical directive such as a living will and/or a durable power of attorney for health care (medical power of attorney), individuals may make arrangements and give authority to others to carry out their health care instructions.

A few decades ago, living wills were virtually nonexistent. By 1984, only a few states had enacted living will legislation. Today, all states have statutes to address the issues surrounding living wills.

In 1990, Congress passed the Patient Self-Determination Act mandating that all hospitals and nursing homes must provide information on living wills. The legal treatment of living wills is determined by the courts of states having applicable statutes. Essentially, state courts permit a person to execute wishes pertaining to their medical treatment within the state’s statutory guidelines.

State statutes, while similar, contain variations. For example, the way in which different states define what is considered to be “life prolonging” and “life-sustaining” can vary widely. Another area in which state statutes vary concerns the definition of a terminal condition that will result in death. One common requirement is a statement by one or more physicians that the declarant’s death is, indeed, imminent.

Individuals who execute living wills make a decision not to prolong the dying process, which may involve pain, suffering, as well as personal and family financial disaster.

The majority of medical situations arising under living wills revolve around the withholding of artificial feeding and hydration. For instance, some states only allow the removal of nutrition and hydration when the living will expressly addresses these topics. The administration of antibiotics can also be a murky and controversial area.

A living will also brings to the foreground the inherent conflict of an individual’s right to privacy and self determination versus the medical Hippocratic Oath to preserve life whenever possible. They apply to situations where the patient is terminally incapacitated or permanently unconscious and are limited to decisions concerning artificial life-support issues.

Living wills can also be used to appoint a health care representative, often referred to as a surrogate, to oversee and implement a declarant’s medical intentions stated in the document, including the termination of life support.

Over the years, there have been many serious questions regarding the legal effect of living wills. It is important that state law be carefully examined. Actions taken by a state legislature could determine whether physicians and other health care personnel will follow living will directives.

The potential civil or criminal liability of physicians and licensed health personnel who act in accordance with living will directives is an important legal issue involving the right to die. Most state statutes, however, grant immunity to medical providers acting in accordance with a patient’s living will.

Advance medical directives also present moral considerations. Since the most fundamental mandate of a physician is to preserve life, a physician may regard being party to a directive not to provide life support as contrary to his or her medical training and principles. Also, persons executing or carrying out living wills may encounter personal obstacles of a religious or moral nature.

As the quality of medical care advances, the law continues to evolve in this area. Regardless, concerns about the financial and emotional costs of artificially sustaining life are likely to result in an increasing number of individuals creating living wills in the future.