Los Angeles Estate Attorneys Explain Living Wills

IS AN ADVANCE HEALTH CARE DIRECTIVE DIFFERENT FROM A "LIVING WILL"? : The Advance Health Care Directive is now the legally recognized format for a living will in California. It replaces the previous Natural Death Act Declaration. The Advance Health Care Directive allows you to do more than the traditional living will or living wills, which only states your desire not to receive life-sustaining treatment if you are terminally ill or permanently unconscious. An Advance Health Care Directive allows you to state your wishes about refusing or accepting life-sustaining treatment in any situation.

Unlike living wills, an Advance Health Care Directive also can be used to state your desires about your health care in any situation in which you are unable to make your own decisions, not just when you are in a coma or are terminally ill. In addition, an Advance Health Care Directive allows you to appoint someone you trust to speak for you when you are incapacitated. Such a procedure would be more complicated and possibly not effective under wills and living wills.

You do not need a separate living wills if you have already stated your wishes about life-sustaining treatment in an Advance Health Care Directive. The Advance Health Care Directive often includes an optional living will statement that you can select if it reflects your desires.

WHAT IS A DURABLE POWER OF ATTORNEY FOR HEALTH CARE? : California law allows you to choose another person to make health care decisions for you if for any reason you are unable to speak for yourself or are incapacitated. By completing a document called a "Durable Power of Attorney for Health Care" (DPAHC), you can appoint another person to be your health care "agent".

This person will have legal authority to make decisions about what types of medical care you should receive if you are unconscious or otherwise cannot make these decisions for yourself. You can also write down your health care wishes in the DPAHC form (for example, a desire not to receive treatment that only prolongs the dying process if you are terminally ill). Your agent must, by law, follow these instructions.

A properly completed DPAHC provides the best assurance that your wishes will be respected if you become seriously ill and cannot speak for yourself.

IS A DPAHC DIFFERENT FROM A "LIVING WILL"? : Yes. "Living wills" typically are documents that state your desire not to receive life-sustaining treatment if you are terminally ill or in an irreversible coma. The living will form specifically recognized under California law is called a Natural Death Act Declaration.

A Durable Power of Attorney for Health Care allows you to state your wishes about accepting or refusing life-sustaining treatment. Unlike a living will or Declaration, a DPAHC also can be used to state your desires about you.

LIVING WILLS AND DURABLE POWER OF ATTORNEY : With the increasing ability of medical science to sustain our lives, people are living much longer than ever before. Unfortunately, as we grow older and experience poor health, we may find ourselves in a position where decisions need to be made as to how we wish to be treated in a variety of unfortunate medical situations at the end of our lives. Further, sometimes we find ourselves in a condition where we can no longer express our preferences coherently. Living wills, and advance health care directives allow us to deal with these situations. Without such wills and living wills and directives, your family may find it necessary to obtain court orders to deal with your medical situation.

State laws vary concerning living wills and durable power of attorney and the appropriate documents to cover these situations such as wills and living wills. All fifty states permit you to express your wishes as to medical treatment in terminal illness or injury situations and to appoint someone to speak for you in the event you cannot speak for yourself through wills and living wills. Depending on the state, these documents are known as "living wills", "medical directories", "health care proxies", or "advance health care directives". Some states have a standardized document for this process, while other states leave the language up to individual lawyers and their clients.

WHAT ARE LIVING WILLS : You may find yourself asking what are living wills? A living will is your written expression of how you want to be treated in certain medical conditions. Depending on state law, this document may permit you to express whether or not you wish to be given life-sustaining treatments in the event you are terminally ill or injured, to decide in advance whether you wish to be provided food and water via intravenous devices ("tube feeding"), and to give other medical directions that impact the end of life through wills and living wills. "Life-sustaining treatment" means the use of available medical machinery and techniques, such as heart-lung machines, ventilators, and other medical equipment and techniques that will sustain and possibly extend your life, but which will not by themselves cure your condition. In addition to terminal illness or injury situations, most states permit you to express your preferences as to treatment using life-sustaining equipment and/or tube feeding for medical conditions that leave you permanently unconscious and without detectable brain activity.

WILLS AND LIVING WILLS : A living will applies in situations where the decision to use such treatments may prolong your life for a limited period of time and not obtaining such treatment would result in your death. It does not mean that medical professionals would deny you pain medications and other treatments that would relieve pain or otherwise make you more comfortable, no wills and living wills is required for such pain relief. Living wills do not determine your medical treatment in situations that do not affect your continued life, such as routine medical treatment and non life-threatening medical conditions, this is the primary use of wills and living wills. In all states the determination as to whether or not you are in such a medical condition is determined by medical professionals, usually your attending physician and at least one other medical doctor who has examined you and/or reviewed your medical situation as well as your living wills and durable power of attorney. Most states permit you to include other medical directions that you wish your physicians to be aware of regarding the types of treatment you do or do not wish to receive through your living wills and durable power of attorney.

WILLS AND LIVING WILLS : A "health care proxy", sometimes called a "health care surrogate" or "durable medical power of attorney", is the appointment of a person to whom you grant authority to make medical decisions in the event you are unable to express your preferences. Most commonly, this situation occurs either because you are unconscious or because your mental state is such that you do not have the legal capacity to make your own decisions. Normally, a single individual is appointed as your health care proxy, though quite commonly one or more alternate persons are designated in the event your first choice proxy is unavailable, a successor. As with the living will, medical professionals will make the initial determination as to whether or not you have the capacity to make your own medical treatment decisions. The health care proxy is a durable power of attorney specifically designed to cover medical treatment. As with wills and living wills, depending on your state of residence, it may be a state-determined form or may be drafted individually by your living will attorneys.

WHY HAVE HEALTH DIRECTIVES? : Regardless of the name your state gives to these documents, their purpose is to allow you to express your preferences concerning medical treatment at the end of your life, sometimes known as living wills. By expressing such preferences in a written legal document, you are ensuring that your preferences are made known. Physicians prefer these documents because they provide a written expression from you as to your medical care and designate for the physician the person he or she should consult concerning unanswered medical questions. Rather than the physician having to obtain a consensus answer from your family as to your treatment, the physician knows your preferences and knows who you want to provide decisions when you cannot do so through your living wills and durable power of attorney.

These documents provide your expressed wishes, rather than making the family guess your desires. Making your wishes known in advance through wills and living wills prevents family members from making such choices at what is likely one of the most stressful times in their lives. Further, providing such information and designating a health care proxy means that the physician knows whose direction is to be followed in the event your family disagrees as to what medical treatment you would want. This is a key aspect of what are living wills.

OBTAINING AND MAINTAINING LIVING WILLS AND HEALTH CARE PROXIES : Your will attorneys can provide you with each of these documents. Generally, these documents require at least two witnesses to be valid living wills. It is the policy of some hospitals and other medical institutions not to permit their employees to witness the signing of such living wills and durable power of attorney documents. In most states there are other restrictions as to who may witness such documents. Generally, the persons who act as witnesses are not permitted to be individuals entitled to any inheritance as a result of your death through your wills and living wills, either by will or by state law. Often the law does not permit persons to witness such documents if they are related to you by blood or by marriage, or if they are responsible for payment of your medical bills. In any event, the witnesses must be adults as defined by your state law for the living wills and durable power of attorney to be valid.

While all states recognize these advance health care directives and living wills, the law varies as to recognizing a document prepared in another state. It is not necessary to prepare additional documents in case you might vacation in another state. However, if you spend a considerable amount of time living in more than one state, you should consider having living wills and advance directives prepared in each of the states in which you spend significant periods of time.

Should you change your mind as to your living will decisions or your choice of health care proxy, you can simply destroy the document you have and create a new one. Once you have a living will, health care proxy, or advance health care directive, you should keep it among your important papers. Make sure a responsible adult, such as the named health care proxy, knows where you keep these documents. If you have a regular physician who keeps your medical records such as living wills and durable power of attorney, you should provide a copy of the documents to him or her for your medical records. In the event you are admitted to a hospital you should take these wills and living wills documents with you at the time you are admitted and permit the hospital to place copies into your medical files. It is also a good idea to know what are living wills, and to discuss the decisions you have made in your documents with family members so that they may better know and understand your wishes concerning these matters.

If you find yourself confused, or would like to speak to a qualified California Trust Wills attorney regarding these important matters, please call McFarlin & Geurts, LLP for a free confidential consultation.