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Advance Directives

Many people today are worried about the medical care they would be given if they should become terminally ill and unable to communicate. They don’t want to spend months or years dependent on life-support machines, and they don’t want to cause unnecessary emotional or financial distress for their loved ones.

That’s why a growing number of people are taking action before they become seriously ill. They are stating their health care preferences in writing, while they are still healthy and able to make such decisions, through legal documents called advance directives.

Before deciding what choices about your care at the end of life are best, you should talk over the issues involved with your family and your physician. Find out about the laws and forms that apply in Pennsylvania. Decide whether advance directives are right for you.

This material will give you some basic facts about advance directives to get you started on this process.

What are advance directives?
Formal advance directives are documents written in advance of serious illness that state your choices for health care, or name someone to make those choices, if you become unable to make decisions. Through advance directives such as living wills and durable powers of attorney for health care, you can make legally valid decisions about your future medical treatment.

Why is there so much interest in advance directives now?
Questions about medical care at the end of life are of great concern today, partly because of the growing ability of medical technology to prolong life and partly because of highly publicized legal cases involving comatose patients whose families wanted to withdraw treatment. Many people want to avoid extending personal and family suffering by artificial prolongation of life for patients in a vegetative state or when there is no hope of recovery. The best way for you to retain control in such a situation is to record your preferences for medical care in advance.

What does the law say about this issue?
Laws differ somewhat from state to state, but in general a patient’s expressed wishes will be honored. No laws or court has invalidated the concept of advance directives, and an increasing number of statutes and court decisions support it. In 1990 the U.S. Supreme Court found in the case of Nancy Cruzan that the State of Missouri could require ”clear and convincing” evidence of a patient’s wishes in order to remove life supports. Formal advance directives can be critical to establishing such clear and convincing evidence of a patient’s wishes. The Patient Self-Determination Act of 1990 requires hospitals to inform their patients about advance directives as of December 1991.

What is the legal status of advance directives?
Most states legally recognize some form of advance medical directive. Even in states that do not, because decision making for an incapacitated patient should respect the choices the patient would have made, such documents carry substantial weight. Even if a particular instruction in an advance directive might not be enforceable under some circumstance, it is better to express your wishes and intent in some kind of written document than not to express them at all.

What if I draw up a living will or health care power of attorney and then change my mind?
You can change or revoke these documents at any time. Any alterations and any written revocation should be signed and dated, and copies should be given to your family, physician, and other appropriate people. Even without an official written change, your orally expressed direction to your physician generally has priority over any statement made in a living will or power of attorney as long as you are able to decide for yourself and can communicate your wishes. If you wish to revoke an advance directive while you are hospitalized, you should notify your primary physician, your family, and others who might need to know. If you consulted an attorney in drawing up your document, you should also notify him or her.

What if I fill out an advance directive in one state and am hospitalized in a different state?
The law on honoring an advance directive from another state is unclear. Because an advance directive is an expression of your intent regarding your medical care, it will influence that care no matter where you are hospitalized. However, if you spend a great deal of time in more than one state, you might wish to consider executing an advance directive in both states.

If a comatose or mentally incompetent patient doesn't have a living will or durable power of attorney, who decides whether to withdraw treatment?
If there is no advance directive by the patient, the decision is left to the patient’s family, physician, and hospital, and ultimately a judge. Usually the family, physician, and hospital can reach an agreement without resorting to the courts, sometimes with the help of a ethics professional.

Where can I get living will and health care power of attorney forms?
Information is also available from the American Association of Retired Persons, from your state or local Office on Aging, your local bar association, and many local civic and service organizations.

What is a living will?
A living will is a document in which you can stipulate the kind of life-prolonging medical care you want if you become terminally ill and unable to make your own decisions. Most states have their own living-will form, each with somewhat different requirements. It is also possible to complete and sign a standard form from a stationery store, draw up your own form, or simply write a statement of your preference for treatment.

A living will should be signed, dated and witnessed by two people, preferably individuals who know you well but are not related to you and are not your potential heirs or your health care providers. It should be discussed and shared with your family and your physician, and you should ask your physician to make it a part of your permanent medical record. Although you do not need a lawyer to draw up a living will, you may wish to discuss it with a lawyer and leave a copy with the family lawyer.

What is a durable power of attorney for health care?
A durable power of attorney for health care is another kind of advance directive: a signed, dated, and witnessed document naming another person to make medical decisions for you if you are unable to make them for yourself. You can include instructions about any treatment you want or wish to avoid, such as surgery or artificial nutrition and hydration. Some states have specific laws allowing a health care power of attorney, and provide preprinted forms. You can draw up a durable power of attorney for health care with or without the advice of a lawyer.

What is better – a living will or a durable power of attorney for health care?
In some states, specific laws make it advantageous to have one or the other. Historically, living wills were developed first, and health care powers of attorney were designed later to be more flexible and apply to more situations. Today the distinction between the two types of document is becoming blurred. It is possible to have both a living will and durable power or attorney for health care, or to combine them in a single document that both describes one’s treatment preferences in a variety of situations and names a proxy.

How can I know in advance which procedures I would want or not want to prolong my life?
Although it isn’t possible to specify every possible procedure under every possible circumstance, it is possible to decide what kind of treatment you would want in most situations. Preferences can be clarified by thinking about and discussing with your family, friends, and others your views about death, being totally dependent on the care of others, the role of family finances, the conditions that would make life intolerable to you, and how artificial life-support would affect the dying process. If you have questions about the kinds of procedures that are often used when illness is
severe and recovery unlikely, ask your physician. It is never too early to start this decision-making process, and you should not postpone it until you face serious illness.

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