Wills and Trusts

Wyatt, Tarrant & Combs, LLP

Living Wills and Medical Directives

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No subject is more controversial than the issue of providing artificial life support for a terminally ill patient. The conflict between the duty of the medical profession to protect and support life and the reality that medical science can now almost indefinitely maintain the body in an artificial state has few answers. The emotional strain placed on the family of a terminally ill patient to determine if and when to “pull the plug” only adds to the trauma and anguish faced by the family in this time of crisis.

The financial burden placed on the family who elects to continue medical care when there is no realistic hope of survival will remain long after the machines are removed and the patient dies. Few family members are emotionally equipped to make the decision to terminate medical care efforts for a loved one.

The principal question the family must answer is, “What would you say if you were able to make the decision for yourself?” Court records are full of private family issues which became public because the family members disagreed or were uncertain about the intent of a loved one regarding artificial life support.

Tennessee, like most states, has passed statutes which allow you to state your intentions regarding artificial means of life support, artificial feedings and the donation of organs for transplant. In addition, Tennessee allows you to designate the person who can make the final health care decisions for you if you are unable to make them yourself.

Tennessee law states that every person has a fundamental and inherent right to die naturally with as much dignity as the circumstances allow. The law provides that each of us has the right to accept, refuse or otherwise control decisions relating to the rendering of our own medical care, including the use of extraordinary life support procedures and treatment.

This article will principally deal with Tennessee law. Arkansas and Mississippi have similar laws.

Do I Need All of the Documents?

Everyone needs a Living Will. It states your intention. The Health Care Power of Attorney designates the person or persons who are given the authority to act. Your Living Will may state that you do not desire for artificial means of life support to be utilized. However, the question of “when to pull the plug” must be resolved by family and the medical profession. Your Health Care Power of Attorney designates the person who has the responsibility to determine when it is time to terminate extraordinary medical life support procedures.

The Living Will

The first and most common document which may be executed is referred to as a Living Will. A Living Will provides that if an individual has a terminal condition and the attending physician has determined that no reasonable medical expectation of recovery exists and, as a medical probability, death will result regardless of the use or discontinuance of medical treatment, the medical treatment may be withheld or withdrawn and the patient may be permitted to die naturally with only the administration of medications or the performance of medical procedures deemed necessary to provide comfortable care and to alleviate pain.

The law goes further by allowing you to accept or refuse artificial feedings when there is no reasonable medical expectation of recovery. The law also allows you to indicate whether or not body tissue or organs may be used for transplant purposes.

Health Care Power of Attorney

The second document available in most states is a Health Care Power of Attorney. This document allows you to designate a person who will make final medical care decisions for you if you are unable to make those decisions yourself. The Health Care Power of Attorney names a person you trust to implement your health care directives as expressed in your Living Will. It also allows your designated health care attorney in fact to discuss your health care with medical providers and review medical records. The provisions of Health Insurance Portability and Accountability Act (HIPAA) prohibit medical providers from discussing your medical condition with anyone other than your designated health care attorney in fact. In addition, health care matters may be discussed with any individual to whom you provide a release to your health care provider. Your physician should have forms for this purpose.

Advance Care Plan

A third document available to residents of many states is a Medical Directive or Advance Care Plan. The Medical Directive, like the Health Care Power of Attorney, names the person or persons who have access to medical records and who can make health care decisions for you if you are unable to make them yourself. It also provides other information for your family and the medical community should medical assistance be needed and you are unable to give those instructions yourself.

For those who have a Living Will and a Health Care Power of Attorney, an Advance Care Plan document may be unnecessary. Like the Durable Powers of Attorney, it names an agent to make health care decisions for you. It allows you to designate quality of life conditions that are acceptable and unacceptable. It allows you to indicate whether you wish to receive certain medical treatment such as CPR, life support, feeding tubes, etc.

If an Advance Care Plan is executed, it is important that it be consistent with the elections you make in your Living Will and the instructions which you have given to your health care attorney in fact.

Using the Documents

Once a Living Will, Durable Power of Attorney for Health Care or Advance Care Plan is executed and properly witnessed and/or notarized, all that is required is that the Declarant or someone acting on his or her behalf deliver a copy of the document to the health care provider. The law provides that any physician who is notified of the existence of the documents must follow the instructions you give or as directed by your health care attorney in fact. Any health care provider who cannot, in good conscience, comply with the provisions you give or as directed by your health care attorney in fact, is required to inform you or your family and make every effort to assist in your transfer to another health care provider who will comply with the instructions.

Conclusion

No one wants their family to endure the media frenzy produced by Terri Shivo, Karen Quinlin or Nancy Cruzan. The final decision regarding the utilization of life prolonging procedures should be made by you and those you designate and not the court system. There is no excuse for placing such a burden on one’s family.

Living Wills, Durable Powers of Attorney for Health Care and Advance Care Plans do not cure all problems associated with the continued care of a terminally ill patient. They do, however, provide the family and the medical profession with instructions as to the use or discontinuance of artificial life sustaining treatment and resolve the issue as to the person who is authorized to act on your behalf when you are unable to make medical care decisions for yourself. These documents clearly establish your intention and hopefully relieve the family of the difficulty of making these decisions and the expense of the many problems that are produced when no such documents have been prepared.

Robert D. Malin

Leave a reply. Please note that although this blog may be helpful in informing clients and others who have an interest in information privacy and security, it is not intended to be legal advice. The information on this blog also should not be relied upon to form an attorney-client relationship.

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