Healthcare Directives
Introduction
Advance Directives are estate planning documents that allow someone to make decisions regarding healthcare. Advance Directives include primarily Advance Directives for Medical/Surgical Treatment and the Medical Durable Power of Attorney as well as less commonly used documents called a Do Not Resuscitate Order, and a Directive Relating to Cardiopulmonary Resuscitation. The Medical Durable Power of Attorney is discussed in more detail in the article titled Using Powers of Attorney in Estate Planning. This article will focus on Advance Directives for Medical/Surgical Treatment, also known as the living will.
Drafting the Living Will
In Colorado, an individual can make decisions regarding end-of-life conditions in two instances: the person has a terminal condition or the person is in a persistent vegetative state. For either a terminal condition or a persistent vegetative state, an individual can decide two different things regarding end-of-life decisions: decisions regarding life-sustaining treatment and decisions regarding the provision of nutrition or hydration. Both are treated separately. For each of these categories, the individual has three additional choices to make:
- To withdraw or withhold life-sustaining treatment and to withdraw or withhold nutrition or hydration;
- To provide life-sustaining treatment for a specified period of time and to provide nutrition or hydration for a specified period of time; or,
- To choose to continue life-sustaining treatment for so long as medically feasible and to continue acceptance of nutrition or hydration for as long as medically feasible.
If an individual chooses option three, the individual’s medical professionals will use established procedures to determine whether continuation of life-sustaining treatment or hydration and nutrition is futile or counter-production. If the medical professionals find it futile, they will eliminate these treatments.
Note that although an individual can elect to forgo medical treatment for life-sustaining measures, medical professionals may still be able to administer medications and treatment for reduction or elimination of pain. Thus, a person may elect to forgo life-sustaining measures, but may not be able to forgo receiving pain treatments.
When a Living Will Takes Effect
A living will takes effect when the individual becomes incapacitated – i.e. that person can no longer make decisions for him or herself – and the person either has a terminal condition or is in a persistent vegetative state. The decision as to whether a person is incapacitated and has either a terminal condition or is in a persistent vegetative state is made by two qualified medical professionals that have examined the individual.
The living will must be presented to the medical professionals for it to have effect. It’s a good idea to send a copy of the living will to an individual primary care physician after it is executed so that it is part of the individual’s medical file.
Other Options for the Living Will
In addition to making decisions regarding life-sustaining treatment and nutrition and hydration, individuals can also make the following decisions in their living wills:
- Donation of organs and tissues at time of death.
- Medical Power of Attorney (can be incorporated into a living will or drafted separately)
- Designating individuals with whom medical professionals can discuss the individuals medical information pursuant to HIPAA.
- Individual medical directives involving religious, philosophical or moral convictions or decisions concerning known medical conditions that need to be taken into consideration for end-of-life decision-making.
Medical Orders for Scope of Treatment
The Medical Orders for Scope of Treatment (MOST), like the living will, provides guidance to medical professionals on which medical treatments the patient wishes to have or forgo in an end-of-life situation. The statute encompassing MOST was formed because only a small percentage of the population actually prepares living wills. It is designed largely for those who are chronically or terminally ill or reside in nursing homes and who are incapacitated. MOST forms are completed by medical professionals – not legal professionals.
The MOST forms provide information to the medical professional regarding things such as cardiopulmonary resuscitation and other medical interventions in the event of an end-of-life situation. The individual can choose no treatment to full treatment and everything between. Once signed, the MOST form remains part of the individual’s medical records.
Revocation of Living Wills or MOST forms
An individual can revoke a living will or MOST form at any time. For a living will, the individual can tear up or destroy the living will or he or she prepare another living will that overrides the earlier living will. If a copy was provided to medical professionals, the individual should let the medical professionals know that the living will is no longer effective or provide a copy of a later living will executed by the individual. The MOST form can also be revoked by clearly notifying the medical professionals that the individual no longer wishes for it to have effect.