In Elder Law News

Expect the Unexpected written on wooden signposts outdoors.Creating a living will ensures your future health care decisions and plans are respected. A living will, or advance directive, is a legal document outlining medical treatment preferences and end-of-life care if you can’t communicate or make decisions for yourself. Everyone should have an advance directive, as end-of-life situations can happen at any age due to accident or illness.

Medical Treatment Decisions

This document identifies medical treatments you would (or wouldn’t) accept to keep you alive. It may include other medical decisions, such as pain management.

Consider the following: How important are self-sufficiency and independence to you? What circumstances may make you feel life is no longer worth living? Do you want to be alive at all costs in any situation, or would you only want treatment if a cure exists?

You can address several possible end-of-life care scenarios in your living will, including:

  • Cardiopulmonary resuscitation (CPR) – Restarts the heart when it has stopped beating; can be done manually (chest compressions) or mechanically (defibrillator).
  • Mechanical ventilation – Takes over the job of breathing if you can’t breathe on your own.
  • Tube feeding – Supplies the body with fluids and nutrients intravenously or through a tube in the stomach.
  • Dialysis – Manages fluid levels and removes waste from your blood if your kidneys do not function.
  • Antibiotics or antivirals – Treats many infections. Would you prefer aggressively using pharmacy treatments if you are near the end of your life?
  • Palliative or comfort care – Includes various ways to keep you comfortable, managing pain while abiding by other designated treatment choices. You may choose to die at home or receive strong pain medications, avoiding other invasive treatments or tests.
  • Organ and tissue donation – Permits temporary life-sustaining treatment until the organ removal procedure is complete.
  • Donating your body to science – Makes your body available for scientific study at a medical school or university program.

Durable Medical Power of Attorney

A health care or medical power of attorney (POA) is a type of advance directive. This document appoints an advocate to make medical decisions for you. Depending on your state, the name for a durable medical POA may vary, such as agent, proxy, or surrogate.

State laws regarding living wills vary. Following legal requirements is imperative to ensure your living will is valid. Retaining the services of an estate planning attorney can ensure your living will complies with laws in your state, such as witnessing and notarizing your documents.

Selecting the right individual to act as your medical power of attorney is important. It’s impossible to anticipate every situation, and your health care agent may have to make a judgment about your care wishes. Your attorney may encourage you to select one or more alternates in case your first choice can’t fulfill the role. Choose a medical POA who meets the following criteria:

  • They meet your state’s health care agent requirements
  • They aren’t your physician or a part of your medical team
  • They are willing and capable of discussing medical care and end-of-life issues with you
  • You trust them to make decisions that adhere to your values and wishes
  • You trust them to advocate on your behalf if there are disagreements about your care

DNRs and DNIs

A do not resuscitate (DNR) and do not intubate (DNI) order is not part of an advance directive or living will. To establish your preferences, speak to your doctor, who can make them as part of your medical record. Although you may have a living will preference that addresses DNR and DNI orders, have a physician create these individual documents each time you're admitted to a new health care facility or hospital.

Physician Orders for Life-sustaining Treatment (POLST)

Some states include a physician order for life-sustaining treatment (POLST) or medical order for life-sustaining treatment (MOLST) document as part of an advance health care directive.

POLSTs and MOLSTs address patients already diagnosed with a serious illness. This form doesn’t replace your directives; it provides instructions for the doctor that reflect the treatment you prefer. Your doctor fills out the form based on conversations you’ve had about the likely course of your illness and your treatment preferences.

Creating Advance Directives

After reflecting on your choices for a living will, meet with your doctor and attorney. They can help create the written content for an advance directive. Your lawyer can help prepare the forms specific to your state, as some may require a witness or notary.

Once your documents are complete, take the following steps:

  • Keep the originals in an easily accessible but safe location.
  • Provide a copy to your doctor, health care agent, and any alternate agents.
  • Keep a list of the people who have your advance directives.
  • Talk to your family and other loved ones about your health care wishes. Provide clarity to family members to prevent conflict or guilt during difficult times.
  • Carry a wallet-sized card indicating you have advance directives and a health care agent, as well as the state(s) where your directives are.
  • Travel with a copy of your advance directive.

Making Changes to Advance Directives

You can change your directives whenever you wish if you are of sound mind. You must create a new advance directive form, distribute new copies to the appropriate individuals, and destroy all old copies. Some states have specific requirements for changing directives, so consult your estate planning lawyer about relevant laws.

Discuss any directive changes with your primary care physician. Add new medical directives to hospital or nursing home charts. Inform your health care agent and loved ones about the changes.

Review and update your directives in case of a new diagnosis, a marital status change, or about every five years. Regular review of your living will ensures it still reflects your wishes and is up to date.

Contact an estate planning lawyer to discuss a comprehensive advance directive and durable powers of attorney. They can ensure your living will meets your state’s requirements and provides clear instructions for your health care decisions.

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