Advance Directives

MAKE END-OF-LIFE REQUESTS NOW |

George Santayana, the noted philosopher, poet and novelist said, “Those who cannot remember the past are condemned to repeat it.” It has been more than three and a half years since the legal battle concerning end-of-life decisions for Terri Schiavo made national headlines. Schiavo did not have a living will. The legal battle between her husband and parents over the withdrawal of a feeding tube used to keep Schiavo alive took almost 12 years and involved the governor of Florida, the U.S. Congress, the U.S. Supreme Court and the president of the United States.

Unfortunately, after this well-publicized illustration of the need to have an advance directive, recent surveys indicate that the vast majority of adults in the United States still do not have one. (The term “advance directive” covers both a living will and a health care power of attorney.)

History keeps repeating itself. A Florida woman suffered a seizure and a stroke in November 2007 and was confined to hospitals and nursing homes. Her husband of 34 years sought to have her feeding tube removed in March 2008. The woman’s mother disagreed with the husband and fought its removal. This case, just like the Schiavo case, ended up in court. It looked like the family was in for a long legal battle except that the woman passed away six months later.

Easy and Inexpensive
All 50 states permit you to express your wishes regarding the medical treatment you want to receive in an end-of-life situation and the person you want to make health care decisions for you if you cannot make them for yourself. The laws of some states prescribe the exact form that these documents need to take, while others leave the language up to the individual and his or her lawyer.

An advance directive can be obtained at very little cost and in a very short period of time. There is no excuse for not having one. In Utah, the applicable document is called an Advance Health Care Directive. In Idaho, the document is called a Living Will and Durable Power of Attorney for Health Care. These documents combine a living will with a health care power of attorney. In both Utah and Idaho, the forms of these documents are dictated by law. The Idaho form does not require any witnesses and does not need to be notarized. In Utah, the document needs just one witness. It also does not need to be notarized.

Information about advance directives is readily available on the Web and from state and local health care and senior citizen organizations. A lawyer is not required. Most estate planning attorneys help their clients complete advance directives and are able to answer any questions you may have.

Appoint a Decision Maker
Under both Idaho and Utah law, anyone who is over the age of 18 and of sound mind can complete an advance directive. If you change your mind at a later date about the decisions you made, you can revoke your existing directive and complete a new one. In the health care power of attorney portion of these documents, you are free to appoint anyone you choose who is an adult and of sound mind. You can name a member of your family, a loved one, a friend or a neighbor. The health care powers of attorney only become effective if you are unable to make decisions on your own. With living wills, you can be as general or as specific as you want about the type of care you want to receive in an end-of-life situation. You can specify if you want to receive hydration, nutrition, or other life-sustaining treatments such as dialysis or breathing assistance with a ventilator or respirator. Please note that living wills will not be given effect, regardless of any directive to the contrary, if you are pregnant, until the pregnancy is complete.

By completing an advance directive, you take these decisions out of the hands of your loved ones at a very stressful time. You also potentially avoid prolonged, expensive and emotionally damaging legal battles. Most people prefer that their private matters remain just that — private. However, with end-of-life issues, it is extremely important that you communicate your wishes in writing to your family and friends. An advance directive is the first step in this process.

Laurie S. Hart is a shareholder with the law firm of Callister Nebeker and McCullough in Salt Lake City. Her practice focuses on business transactions and estate planning. Visit her on the Web at www.cnmlaw.com.

Please note: The preceding article is offered for informational purposes only, and should not be construed as legal advice or as pertaining to specific factual situations. Consult an attorney concerning your own needs and circumstances and to obtain any legal advice with respect to the topics discussed in the article.

Resources:
For Utah: http://aging.utah.edu/utah_coa/directives/index.html
For Idaho: http://www2.state.id.us/ag/living_wills/index.htm

Featured in the January/February 2009 issue of Zions Bank’s Community magazine.

*Artwork from One Good Bumblebee under Creative Commons license at Flickr.com.