Introduction
Ordinarily, when you go to a physician for medical care, you and your physician discuss your treatment options and you decide which treatments, if any, you wish to undergo. The law recognizes that if you are an adult of sound mind, neither your physicians nor anyone else may treat you without your consent. This is true even if the treatments are necessary to keep you alive.
There are occasions where some people, because of their personal, religious or other beliefs, the nature of their illnesses, or the nature of proposed life-sustaining treatments, would choose to forgo such treatments. For example, many people feel that if they were to fall into an irreversible coma with no hope of recovery, they would rather be permitted to die than be hooked up to respirators and other machines indefinitely.
Unfortunately, when decisions about life-sustaining treatment have to be made, people are often in no condition to express their treatment wishes. Without evidence of such wishes, some state laws make it very difficult to stop life-sustaining treatments even if family members or close friends believe that the patient would have wanted such treatments stopped.
A good example of this is a case involving twenty-five year old Nancy Cruzan. In 1983, Nancy was severely injured in an automobile accident and lost her mental faculties. To keep her alive, the hospital hooked her up to equipment that provided her artificial nutrition and hydration. After learning that Nancy had almost no chance of regaining consciousness and recovering her mental abilities, Nancy's parents asked a court to permit them to disconnect the nutrition and hydration equipment. The court refused to do so, even though there was evidence from one of Nancy's friends that Nancy would not have wanted to be kept alive under these circumstances. The court found this evidence insufficient as the state law required clear and convincing evidence of Nancy's wishes.
Fortunately, all states have created mechanisms, known as advance directives, through which you can help to assure that your treatment preferences will be known and acted upon even if you are incapacitated when medical decisions have to be made. Two such mechanisms are living wills and health care proxies.
Living Wills
A living will is a document in which you can write down in advance your wishes regarding life-sustaining treatments should you become terminally ill and unable to convey your decisions to your physician. For example, in a living will you can direct that, should you become terminally ill and mentally incapacitated, you do not want to be kept alive on a respirator. You can also enumerate the circumstances in which you wish to receive life- sustaining treatments. Thus, you could direct in a living will, that should you become incapacitated, you want to be kept alive by artificial nutrition and hydration. Directions in living wills will not be followed as long you are capable of making your own treatment decisions. In addition, the creation of a living will is entirely voluntary, and therefore no one can require you to do so.
Are living wills recognized in every state?
Laws authorizing living wills have been enacted in over 40 states. However, these laws can vary in important ways. For example, according to some state laws, instructions in living wills must be followed only when individuals are suffering from a disease that will shortly lead to their deaths, regardless of medical interventions. Other states' laws provide that living will instructions are effective even if a person is in an irreversible coma that will not cause the person's death. In some states, individuals may write living wills at any time while in others, individuals may not write living wills once they have acquired a terminal illness. Some states recognize living wills for specific periods of time, for example five years, while other states place no time limits on the effectiveness of living wills. Significantly, some states will not legally acknowledge instructions in living wills that direct the removal of feeding tubes that provide nutrition and hydration.
Advantages and disadvantages of living wills
Using a living will allows you to specify the circumstances under which you wish to receive particular types of life-sustaining treatment. Thus, living wills can give you some control over your medical care when life and death decisions need to be made. However, living wills are ordinarily not used to delineate treatment decisions you would wish put into effect in the event you were to suffer from a nonterminal illness and lose your ability to make treatment decisions. For example, if you were to become unconscious as a result of a non-life-threatening fall, the instructions in your living will would usually be irrelevant. In addition, even in a terminal illness context, it is impossible to anticipate in a living will all of the possible treatment choices with which you might be faced. Thus, regardless of how detailed you make your living will, there still may arise unexpected circumstances not covered by it. Another difficulty with using living wills is that conflicts can arise over its proper interpretation when treatment decisions need to be made.
In one case, a man named Tom Wirth wrote in his living will that he wanted life-sustaining treatments withheld or withdrawn if he experienced “an extreme mental deterioration, such that there was no reasonable expectation of recovering or regaining a meaningful quality of life.” As a result of complications from AIDS Related Complex, Tom became incompetent and unable to express his treatment wishes. The hospital caring for Tom wanted to treat him with antibiotics so that he could regain consciousness. However, Tom's good friend John Evans stated that to Tom, “recovering or regaining a meaningful quality of life” meant being cured of AIDS Related Complex. Because the hospital's treatments would not cure this condition, John Evans objected to the hospital providing Tom with antibiotics or artificial nutrition or hydration. The court ruled in favor of the hospital because, among other things, the phrase in Tom's living will, “recovering or regaining a meaningful quality of life” was ambiguous.
Health Care Proxies
Most states have laws that permit you to appoint a health care agent to make medical decisions for you should you become unable to make such decisions yourself. The appointment of these health care agents is most often accomplished through the filling out of forms known as health care proxies. Some health care proxy forms allow you to direct your agent to make specific medical treatment decisions in particular situations.
State laws generally grant health care agents the power to make all medical decisions for incapacitated persons, including decisions concerning life-sustaining medical interventions. For example, if a man appoints his wife as his health-care agent and then becomes incompetent due to Alzheimer disease, the wife is empowered to decide his course of treatment Some states, however, restrict the ability of health care agents to make decisions about the insertion or removal of feeding tubes that provide patients with nutrition and hydration. Regardless of the scope of their powers, health care agents have no authority to make any medical decisions for you before it's been determined that you cannot make the decisions for yourself. The health care proxy laws generally permit you to list alternate health care agents so that someone will be able make medical decisions for you should your original proxy be unavailable. Like the living will, the appointment of a health care agent is entirely voluntary.
Who should you appoint as your health care agent?
Generally, you can appoint any adult to be your health care agent, although you should first determine whether that person is willing to serve as your agent. People who appoint health care agents generally choose someone who knows them well, cares about them, and whom they can trust. For example, some people appoint spouses or other close family members as their proxies, while others appoint close friends.
Regardless of who you appoint as your health-care agent, it is a good idea for you discuss with him or her medical treatment issues that are important to you. An example of such an issue is the use of artificial nutrition and hydration should you become incompetent and have little chance of regaining your mental faculties. By discussing these issues with your health-care agent, the agent will be more likely to have the information necessary to determine the types of medical decisions you would want made for you should you become incapacitated. Even if you do not discuss these issues with your agent, your agent will still have the power to make medical decisions for you if you are unable to do so yourself.
The Differences Between Living Wills and Health Care Proxies
As opposed to living wills, health care proxy forms do not require you to specify what treatments you would wish to undergo in particular circumstances. Rather, they permit you to appoint an agent who is empowered to make virtually any health care decision for you should you lose decision-making capacity. In addition, while living wills generally cover only decisions about life-sustaining treatments in circumstances where an incapacitated individual has a terminal illness or is in an irreversible coma, health care agents may make medical decisions in all circumstances in which an individual becomes incapacitated. In many ways, therefore, the appointment of a health care agent allows for greater flexibility than does the writing of a living will.
When and How to Write a Living Will and Fill Out Health Care Proxy Forms
Many people associate health care proxy forms and living wills with the elderly or very ill. However, some of the most prominent cases that illustrate the need for these documents involved young adults in tragic accidents who became incapacitated and required decisions to be made for them about life-sustaining treatments. Because the occurrence of serious injuries or sudden changes in health status cannot be predicted with any certainty, it is a good idea for you to fill out one or both of these documents as soon as you are able no matter what your age or health status.
Some state departments of health and nonprofit organizations such as Choice in Dying can provide you with detailed, state-specific information about health care proxies and living wills. Hospitals and other medical providers that receive federal funds are required by federal law to provide you, upon your admission as a patient, with information about your rights under state law to create advance directives such as living wills and health care proxies.
After you have written a living will or have filled out a health care proxy form you should let your family and close friends know about its existence and location, so that they can readily access the document should the need arise.
Summary
Living wills and health care proxies are advance directives that allow you to retain control over your medical care if you become incapacitated and are no longer able to make medical decisions for yourself. In a living will, you are able to specify circumstances under which you wish to be given particular life-sustaining treatments, while health care proxies enable you to appoint an agent to make medical decisions for you. Regardless of your age or state of health, these are important documents to have.
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