Every individual has the right to refuse medical treatment for any reason. However, if that individual is unable to make decisions for themselves, their wishes must be in writing ahead of time. One well-known example is the Terry Shivoh incident, where the personal suffering and attempted liability of a family was aired on television as an attempt to keep a comatose woman on life support. The primary issue and reason the case became a matter of drama was that Mrs. Shivoh had not drafted a living will prior to going into a coma.
A living will or power of attorney document allows a person to dictate what medical decisions can be made on their behalf in the event they are unable to communicate their wishes, and who will have authority to make important decisions. Through a living will, a person can specify what types of emergency medical intervention and life-saving techniques they do and do not want to be undertaken on their behalf. In addition, power of attorney can enable a family member or trusted friend to manage finances in a time of need. The individual entrusted to act on the behalf of another is known as the agent, or attorney-in-fact; whereas the person granting the authority is generally referred to as the principal. In this section of FreeAdvice, you will find information on how to draft powers of attorney and living wills, when to use them and the various rules associated with the creation and enforcement of each.
Just like a standard Last Will and Testament, living wills are an important document for everyone to create. The purpose of a living will is to set out directions with regard to medical treatment in the event of serious or permanent injury. Living wills can be very basic or very complex, depending on the creator's preferences. In fact, for those who prefer to write their own legal documents, a living will can be very simple to draft. All that is required is clear communication of intent and proof of sound mind.
A living will only applies to medical care and does not replace a standard will or trust, which are meant to address the distribution of assets, property, and possibly guardianship of children in the event of your death. Many people will simply have their living will attached to their standard will and filed along with the document for reference.
A power of attorney, or durable power of attorney as it is sometimes referred to, is a document that grants a trusted person the ability to speak and make financial decisions in another person's best interest in the event of incapacitation. There are many different types of power of attorney and each has a different purpose. For instance, a health care power of attorney gives another person the right to make medical decisions, whereas a power of attorney for finances bequeaths the right to make decisions regarding investments and the sale of property.
Because a power of attorney is a very specialized document, it is usually drafted by an attorney. This is to ensure that the intent of the person is clearly defined and that a proper alternative is in place in the event of power of attorney abuse. However, it is better to have a self-drafted power of attorney than none at all. The power of attorney will take effect in the event of incapacitation, typically with the approval of the court. Should the incapacitation end and the person recover, the power of attorney is no longer in effect.
Do not resuscitate orders are documents that prevent health care providers from attempting life-saving measures in the event of cardiac arrest. A do not resuscitate order can be part of a living will or a separate document, depending on the state’s specific laws. The purpose of DNRs is to ensure that elderly or severely ill individuals can avoid the painful complications of CPR that can often prolong chronic illness. This decision is a right of every individual and should be honored by loved ones. The laws of every state are different regarding DNRs and in the event that paramedics are called into a home, a DNR is typically not honored and the person will still be rushed to the hospital and have CPR performed. Because of this possibility, it is important that one’s medical wishes are clearly communicated to family in advance.