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Idaho Living Wills and Durable Powers of Attorney

While it can be very hard to think about the care you will want if you are chronically ill and unable to express your medical wishes, it is true that people can unexpectedly find themselves in such a situation.   Even worse than being ill and unable to communicate is not preparing in advance a statement of how you would like to be cared for at that time. 

If you do not have such a statement, it is possible that family and health care professionals, not understanding your wishes, might prolong your life beyond what you would have wanted, or pursue medical procedures in a way that may be inconsistent with your religious or other beliefs.

There are two documents that people normally prepare to express their wishes -  a “Living Will” and a “Durable Health Care Power of Attorney” (sometimes together referred to as an “Advance Health Care Directive”):

·      A “Living Will” sets out how you want medical professionals to provide care for you in the event that you are chronically ill and unable to communicate, or in a vegetative state, at the time care is needed.  

·      A “Durable Health Care Power of Attorney” names an individual as your authorized agent to speak on your behalf to medical professionals and hospitals if you are unable to communicate your desires, and sets out the scope of your agent’s authority.

Having these two documents completed before you become ill, carefully drafted to reflect your wishes, should lessen the possibility of confusion among health care professionals and your family as to the treatment and procedures you would have authorized if you could communicate your desires .[1] The Idaho Legislature has provided a combined “Living Will and Durable Power of Attorney”[2] form for the general public.  It is available online and, if you do not have one in place, a hospital in Idaho will typically present you with this form to fill out and sign before surgery or other major medical procedures. 

However, these forms are very basic and not customized to an individual’s particular desires or circumstances. That said, the form can be edited and added to.  Indeed, there is a place on the form to set forth your specific instructions, wishes, special provisions, and limitations.

Therefore, this white paper poses some questions to ask before completing the form.

Under What Circumstances Does This Form Become Relevant to You

The Living Will section of the form addresses end-of-life questions relating to what treatment you want to receive if two doctors certify that:

a)     the injury, disease, illness, or condition you confront is terminal; and

b)    the application of artificial life-sustaining procedures would serve only to prolong life artificially; and

c)     death is imminent, whether or not artificial life-sustaining procedures are utilized;

or

d)      they have diagnosed you as being in a persistent vegetative state.

Some Initial Questions and Thoughts

1.    Will your decision change depending on how long you could live?  Also, different doctors could interpret the use of “terminal”, “prolong”, and “imminent” differently.  We suggest that you speak to your physician about the definition of these terms.

2.    Will your decision change depending on the quality of life you would have during the period your life is prolonged?  For instance, would your decision regarding your medical care be different if you have no hope of recovery as compared to a small chance of recovery or a chance of recovery with brain damage, loss of motor function, etc?  How would you define quality of life if you are an alzheimers patient?

3.   Should the doctors be the ultimate decision makers or should your agent named in the Durable Power of Attorney section of the form be able to override doctors’ decisions?  For instance, if you have directed that all medical treatment be withheld, but your agent believes, that, given the probability of various outcomes, you would want the treatment, should the agent be able to require further medical treatment even if the directive says to withhold it? 

If you give such a power to an agent, we suggest that you also:

a)     talk to your agent about your beliefs, desires, and experiences so he or she understands, and commits to follow, your desires.  You should also be very comfortable that you can rely on the agent to follow your, not the agent’s, wishes.

b)    consider including a provision that holds your agent harmless for decisions that he or she takes under a reasonable belief that is what you would have wanted, and

c)     think about what you would like to have happen if your agent is not available to make a decision and the hospital or doctors need to act quickly.

Basic Options Presented in the Form Concerning Desired Medical Care

The Living Will offers three medical routine options for you to choose among:

a)  receipt of all medical treatment, care and procedures, including food and water whether provided artificially or non-artificially, or

b)  withholding of all medical treatment, care and procedures, but the giving of either or both food and water by artificial or non-artificial means, or

c)  withholding of all medical treatment, care and procedures, and withholding both food and water.

Note that, if you chose to receive food or water, but are opposed to intravenous provision, the form needs to be modified.  Also, there may be specific other treatments you do or do not want that need to be specified.  For example, you may not want electric shock to keep your heart beating, or invasive diagnostic tests.

Some Additional Questions

1.  Will the cost of care have any influence on the treatment you want to receive? 

2. Have you considered how your religious beliefs could impact your statements regarding health care decisions?   Have   you consulted with your Minister, Church Elder, Rabbi or other religious counselor about how to state your wishes?

3.   Do you wish to authorize your agent to move you to another medical facility if your wishes are not being followed?

4.   Pregnancy - Witness the tragic circumstances of Marliese Munoz’s coma and a Texas hospital’s refusal to take her off life support despite the fact that doctor’s had pronounced her brain dead in late November.  

The reason that the hospital did not act was that she was pregnant and the hospital interpreted the Texas law that required doctors to ignore a ‘do not resituate order’ regarding pregnant women as applicable to her despite the pronouncement of brain death.  She did not have a Living Will (although query - in this case would that have had an effect on this hospital’s decisions?).   

Last week a judge ordered the hospital to take her off life support because he ruled the Texas law did not apply to a person who was already dead.  The Idaho statutory Living Will form contains the following sentence: the “Directive shall have no force during the course of my pregnancy”. Are there any specific instructions about your care that you would like to add should you be pregnant?

5.  Do you want to be buried or cremated upon death?  We recommend to our clients that the include a statement regarding this in these documents rather than, or in addition to, a will.

In summary, the ready availability of a statutory form of Living Will and Durable Power of Attorney on the web is a valuable resource.  However, as with any standard form, it has been drafted for the general public and not specifically for you.  Because this document addresses very complicated and unforeseen medical issues, the black and white options it offers may inadequately or incorrectly address your desires. 

This document may be extremely important to you at some point in the future.  By working with an experienced estate attorney to shape it to reflect your desires, you should be better able to accomplish your objectives.  It is also important to revisit these documents as you get older as your views may change and you may also have a better understanding regarding the medical conditions you will face if the document becomes operative. 

 IMPORTANT NOTICE

 

The foregoing is NOT legal advice.  We have prepared these materials to inform and educate.  They are not, and should not be considered, legal opinions or advice to anyone, nor do they create an attorney client relationship by your reading them.  These materials may not reflect the most current legal developments in the applicable area of law.  Furthermore, this information should in no way be taken as an indication of future results.

In order to comply with the requirements of IRS Circular 230, we must inform you that any tax advise contained herein, including any attachments hereto, are not intended or written so as to be used and indeed, may not be used, by any person, including the recipient(s) and other persons who receive or read this discussion and/or any attachment hereto, for the purpose of (1) avoiding any penalty that may be imposed by the Internal Revenue Code or Internal Revenue Service or (ii) promoting, marketing or recommending to any party any tax-related matter or idea contained herein. 

 

©  Mathieu, Ranum & Allaire, PLLC. 2014

 

 




[1] We also recommend that you visit with your doctor to complete a “Physicians Orders for  Scope of Treatment” (POST).   This form must be completed and signed by BOTH you and your physician. This document provides valuable directions to an emergency medical team. 

 

[2] Both the Living Will and Power of Attorney and the POST can be registered with the on-line Idaho Health Care Registry for Internet access from anywhere in the world.   Note, however, that the effectiveness of your documents in another state could be curtailed if that state’s law or policies preclude medical professionals following some or all of your directions.

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