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By Randall K. Hanson, professor of business law, University of North Carolina at Wilmington

An issue that has gained national and international attention involves the medical profession's ability to sustain life almost indefinitely through sophisticated life support technology. Of course, many people are concerned that if they become permanently comatose or terminally ill, that they will be artificially kept alive causing enormous costs and significant emotional distress for family members. An accident victim who is brain dead, but kept alive is tragic, yet not an uncommon incident.

Without written directives in many states, it is very difficult, time consuming, expensive, and emotionally devastating to cease life support procedures, even if the life sustaining efforts are clearly futile. Without directives from the patient, doctors are simply afraid to cease life support techniques for fear of litigation. Adding to the frenzy is a recent highly publicized case where a man refused to pay a nursing home after the nursing home refused to take his wife off a feeding tube. Although there were no formal instructions, the husband asserted that his wife wished not to be supported in that manner. In the ensuing litigation, the husband was held liable for the continuing costs since there was no written directive authorizing discontinuation.

Almost every state now recognizes medical advance directives by individuals. Advance directives take many different forms, but they basically tell the attending physician what kind of care the patient would like to have if he or she becomes unable to make medical decisions. Advance directives are becoming more common. Federal law now mandates that hospitals inform patients about advance directives when they enter a hospital. This is indicative of how common these directives have become.

While there are many different types of advance directives, there are two directives that are most commonly used. They are "living wills" and "durable powers of attorney for health care." These directives accomplish distinctly different objectives.

Living Wills

The first concept to be completely clear on is that a living will is not in any way similar to a testamentary will and should not be confused with an ordinary will. A testamentary will, among other things, provides for the disposition of property upon death, provides for the appointment of a personal representative, and potentially names a guardian if the testator has minor children. A testamentary will typically has nothing to do with advance directives, since a will does not become effective until after death has occurred. By contrast, advance directives take effect before death.

A living will is probably the most widely recognized of all advance directives. A living will provides specific instructions which will be followed if a person becomes terminally ill, permanently unconscious, or conscious with irreparable brain damage. The basic purpose of a living will is to retain control over whether a life will be prolonged by life support methods after having being diagnosed as being terminal and incurable. It is basically a declaration of a desire for a natural death.

In a living will, the writer is able to describe the kind of treatment he or she desires to have in certain situations. It is common to expressly allow a doctor to terminate extraordinary means of life support, including the withholding of artificial nutrition or hydration. It is very important to understand that a living will does not allow the selection of someone to make decisions on behalf of the infirm; it is a means to merely express preferences while the person is still able to communicate. The most common format of a living will used in the U.S. provides the ability to choose what kind of care is desired if there is an incurable condition and what kind of care is desired if the declarant is in a persistent vegetative state.

Living wills are recognized in almost every state, but there are different validating requirements in some states. For example, in some states two doctors have to certify that the patient has a terminal condition. Some states will not allow termination of life support if the patient is pregnant. Others provide that if a patient is in a coma, the coma must last for at least seven days before life sustaining treatment can be stopped. Specific state requirements can be obtained from a local hospital. Local hospitals will have on hand information that will accurately reflect the particular requirements in that state.

A living will cannot anticipate every type of medical circumstance that may come up and it only comes into effect when you are terminally ill. Because of these limitations, most people who execute living wills also execute a "durable power of attorney for health care."

Durable Power of Attorney for
Health Care

A durable power of attorney for
health care is similar to a living will, but it becomes active any time the grantor is unconscious or unable to make medical decisions. This document allows an individual to appoint another to make health care decisions on their behalf should they become unable to make those decisions. These documents are more flexible than living wills and can cover unexpected situations and events. The person appointed to make medical decisions typically may consent to or refuse medical procedures or medications on the patient's behalf if a physician determines that the patient is unable to make or communicate decisions.

A health-care power of attorney does not authorize the agent to make financial or business decisions for the individual who executed the power of attorney, only health decisions are authorized. Of course, a person who executes a health-care power of attorney must have a person in mind whom he or she can fully trust (usually spouses are named). Most states do not allow health-care providers or nursing home employees to be named as health-care agents.

Most health-care power of attorney documents allow the health-care agent to consent to the withholding or withdrawal of life-sustaining procedures in the event the patient is determined to be terminally ill, comatose, suffering from severe dementia, or in a persistent vegetative state. In addition to life-and-death situations, a health-care agent may make routine medical decisions such as consenting to MRI exams, x-rays, or surgery.

Most states will require two witnesses and certification by a notary public for proper execution. Note that it is very common to execute a living will and a power of attorney. In fact, some states combine both in one document. Both of these directives can be revoked if the grantor changes his or her mind. *

Edwin B. Morris, CPA
Rosenberg, Neuwirth & Kuchner

Contributing Editor:
Richard M. Barth, CPA



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