Final Wishes: The Legal Options

One of the FamilyCare America experts answers your questions on end-of-life legal procedures.

A reader writes:

“My mother recently started the process of legal paperwork concerning her last wishes. We’ve heard that doctors could ‘interpret’ or challenge a legal document about someone’s final wishes. Is this true? Can an Advanced Treatment Directive be interpreted differently than intended? I don’t want this to happen to my mother, but I’m not sure that she feels comfortable granting all medical power to just one other person. Are there other options?”

Ken Faulkner, M.A. Clinical Ethics, M.Div, is a faculty member in the Department of Patient Counseling at Virginia Commonwealth University specializing in adult oncology, crisis intervention, and bereavement support. He responds:

“The questioner is concerned about that portion of advance directives known as the “Durable power of Attorney” for health care decisions. A little more background may help.

“Currently, all 50 states recognize some form of those legal documents that we call advance directives. In most states (with the exception of Alaska, Massachusetts, Michigan, and New York), advance directives contain two major parts. They include a “living will” section and a “durable power of attorney” section sometimes known also as a “health care proxy” for making decisions. (Alaska recognizes only living wills and the other three states recognize only the durable power of attorney.)

“The living will section may be completed by a competent patient who chooses to leave written instructions that explain his or her wishes for treatment if he or she develops a terminal disease or is in an irreversible coma known as a ‘persistent vegetative state.’ These instructions are useful in giving guidance to family members and medical caregivers in the event that the patient is incapacitated or unable to communicate to others as a result of illness or injury.

“The Durable Power of Attorney for health care decisions allows you to appoint a specific person to speak on your behalf and to make medical decisions for you. Again, this is in the event that you are unable to communicate verbally yourself.

“These advance directives are legal documents in all states with the exception of those mentioned above. Specific features may vary from one state to another, so it is always best to check with your local health care provider or an attorney for clarification.

“Living wills can be very helpful in assisting persons to maintain some control of the dying process even if they are not able to communicate. They can indicate what restrictions a person would want on aggressive treatment that might simply prolong suffering and pain in dying. They can indicate what comfort measures should be employed, such as adequate pain medication. Yet living wills cannot address all problems that individuals face at the end of life. Sometimes there is confusion over when the living will should be applied. The determination of when an individual becomes terminally ill is not always clear. So the question becomes, "Is this the circumstance that the patient had in mind when he wrote these instructions?" The answer may not always be clear to the physician or to the family. Interpreting the living will can sometimes be troublesome. It is difficult to craft a statement that would cover all the particular health care circumstances that we might encounter in our lives.

“This is where the durable power of attorney may provide additional help. The appointment of a specific individual to speak on your behalf can give added weight in supporting your end of life wishes. Therefore, it is crucial to name a health care “proxy” you trust, who knows you well, and will be able to exercise good judgment on your behalf. The decisions made by the proxy should reflect the patient's wishes and thoughts to the highest possible degree. He or she should decide as the patient would if the patient could speak on his own behalf. That is why the choice of a proxy decision maker should include extensive conversations with that individual. Be sure not to choose someone for this role without his or her consent and the necessary discussion.

“In reality, any advance directive should take place in the context of conversation on the end of life with all persons who may be involved in the patient's care in the present and in the future. As you think about your end of life wishes, be sure to discuss them with family, close friends, your physician, clergy, and lawyer. And make copies of your advance directives accessible to key persons should the need to use them arise. Some persons may feel uneasy in discussing these concerns. Let them know of the importance of this issue to you. Raise it in the context of planning for the future in general.

“Finally, advance directives of any kind can be revoked by the author for any reason. You can change your directives in any way and at any time you desire. Even a verbal revocation is sufficient. You may need to update them from time to time as circumstances in health, relationships, and values informing your choices change.”

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