HYATTSVILLE

LIFE AND TIMES

Reprint VOL 2, No.10

October 2005

Taking Control of the Future: Living Wills

by J. Carol Williams

The image that immediately comes to mind for many of us when we think of living wills is that of Terri Schiavo, the unfortunate woman who suffered severe brain damage as a result of a heart attack in 1990 and was the subject of so much family anguish, news coverage, and political attention this past summer over whether her feeding tube should be removed. Much of the debate could have been avoided had Mrs. Schiavo executed a living will or an advance directive. In that document, Mrs. Schiavo could have stated what her wishes were regarding receiving nutrition by a feeding tube, if she were in a persistent vegetative state. Having her wishes set out in writing might have helped resolve the decision regarding removal of the feeding tube.

Advance directives are very useful documents which everyone should have. In general, they allow you to do two things: (1) state what your wishes are regarding life sustaining procedures when you are in a terminal or other end stage condition; and (2) name a health care agent to made decisions for you when you can no longer make them yourself, whether your condition is temporary or permanent. But these documents can be used to address a number of other issues, for example, the use of pain medication, whether you want to die at home, and whether you want certain religious practices followed when you are close to death.

The advantage of setting out your wishes regarding these matters is not simply that your agent will have instructions to use in making decisions for you. Often, knowing what you thought you would want in certain specific circumstances gives your designated health care agent direction and comfort when they have to make difficult decisions for you, especially those that are not covered precisely by what is in your document.

This kind of document seems fairly straight forward. You either want life sustaining procedures or you don’t. But life is never so simple. So when you begin thinking about your instructions, it is a good idea to use a number of available approaches to help guide you in making your decisions. One approach is that of "Five Wishes," which helps you make your decisions by asking five questions: who do you want to make health care decisions for you when you can't make them; what kind of medical treatment do you want or don't want; how comfortable do you want to be; how do you want people to treat you; and what do you want your loved ones to know. If you have access to the internet, you may go to the Web site at www.agingwithdignity.org for more information. Another approach is that of the American Bar Association’s Commission of Law and Aging, www.abanet.org/aging/toolkit/home.html. In addition to other materials, this site contains a quiz your health care agent can take to test how well your wishes have been understood. Both of these approaches provide valuable guidance on selecting a health care agent.

So what happens if you don’t have an advance directive? Hopefully, none of us will experience the tragedy or drama of the Terri Schiavo case. If you are unable to make your own medical decisions and have not named a health care agent, a surrogate can make medical decisions for you. Your surrogate may do so, however, only after physician certifications that you cannot make the decisions yourself and, if the decision relates to withholding life sustaining procedures, after additional physician certifications. This all takes time and is an additional stress on your family and loved ones, who would also only be guessing at what you would want if you could decide for yourself. If you are ready to take control of this aspect of your future, go to http://www.oag.state.md.us/Healthpol/adirective.pdf for a useful pamphlet and some sample documents that you can fill out yourself.

J. Carol Williams is an attorney in Hyattsville, MD, whose practice focuses on, among other areas, wills, trusts and other elder law and estate planning issues.

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