Taking Care of Mom and Dad: Living Wills

Of the various alternates to a power of attorney, a health care declaration or advanced health directive -- more commonly called a living will -- is often most effective. It documents your parents' wishes concerning medical treatment when those wishes can no longer be personally communicated.

Every state in the U.S. has laws that permit individuals to sign documents stating their wishes about health care decisions when they cannot speak for themselves. The specifics of these laws vary, but the basic principle of listening to the patient's wishes is the same. The law gives great weight to any form of written directive. If the courts become involved, they usually try to follow the patient's stated values and preferences, especially if they have been written down.

A living will usually goes into effect when a patient is not expected to regain consciousness. This document states the patient's wishes for end-of-life care -- such as breathing and feeding tubes, last-ditch surgeries and palliative care. There is no appointed "agent" to see that the patient's wishes are carried out...but, as a practical matter, hospitals often will consult the patient's agent under a health care power of attorney, if there is one, to verify the provisions.

In most cases, a living will states that your parents do not want extraordinary medical treatment, artificial nutrition or hydration used to keep them alive if there is no reasonable hope of recovery. A living will gives their doctors permission to withhold or withdraw life support systems, under certain conditions.

Putting wishes in writing assures doctors that these issues were carefully considered while your parents had the capacity to make such decisions. It can provide doctors with a defense, if family members later challenge medical decisions made on behalf of an incapacitated patient. Failure to express such wishes in writing can put hospitals and doctors in the position of having to decide which of several family members' preferences about the patient's care to follow.

In the absence of anyone being granted power of attorney or being named a court-appointed guardian, medical institutions try to consult -- in order of importance -- a surviving spouse, adult children, parents, adult siblings or other close relatives or friends.

Oral discussions that the patient previously had with friends or family members carry some weight, if nothing exists in writing. But this consideration can cause more problems.

The result of uncertainty is often that, in an effort to avoid wrongful death liability, medical professionals will use every effort to keep a patient alive as long as possible.

Because of the legal risk if they discontinue treatment without unanimous family agreement, hospitals keep providing ventilators, feeding tubes and other care that your parents may not want.

Encourage your parents to draft a living will. The odds are that they haven't. According to several surveys, only about one in five Americans has written advance directives: a living will or a health care power of attorney.

The large number of people (especially older Americans) who do not have any sort of written directive may be surprising, considering that every hospital and nursing home must ask older patients upon admission if they've handled advance care planning. A federal law took effect in 1991 requiring medical institutions to provide the reminder, though no one is required to act on it.

As with powers of attorney, your parents don't need a lawyer to draft a living will. Many local medical associations and bar associations offer standard living will and health care power of attorney forms that meet local guidelines and are understandable to lay people.

If your parents want to draft their own living will, they should follow some basic guidelines:

• The living will must contain specific statements, not vague abstractions about health care.
• Your parents should declare that they do not want their doctors to use extraordinary means or artificial nutrition or hydration if their condition is terminal and incurable or if they are in a persistent vegetative state.
• They should make clear, consistent choices about appropriate care in various situations. If they make inconsistent choices, the living will may be nullified because it's confusing to health care providers.
• They usually must sign a living will in the presence of two qualified witnesses (no relatives, heirs or doctors) and either a notary public or the clerk of superior court.

Beware of using a living will form that appears on an Internet Web site, in a magazine article...or even in this book. These forms may not contain the statements required to make them valid in a specific state.

Living wills, like powers of attorney, can be revoked. Your parents can revoke a living will by communicating this desire to their doctors. They can use any means available to communicate this intent. In most cases, their mental or physical condition is not considered -- so they don't need to be of sound mind. And, if you have power of attorney or are your parents' closest relative, you may be able to revoke their living will. But you have to request this clearly to your parents' doctors.

If your parents make a new living will, be sure that they revoke all prior living wills that may be inconsistent with the new one. As we mentioned before, inconsistency can result in nullification.