A living will can be utilized by you to communicate your desires to your designated agent and health care provider. A living will only gives power to the agent if your attending physician determines that you lack the ability to understand or communicate health care decisions. You must also be permanently unconscious or have and end-stage medical condition that will result in death, even with the continuation of medical treatment. A living will can also be used for your donor instructions for specific anatomical body parts after death.
A living will, durable health care power of attorney, and a combined mental health care declaration and mental health power of attorney, are all advance health care directives. The living will addresses permanent unconsciousness and serious end of life concerns, and how the person making the living will desires to be treated with such medical conditions. Decisions in the living will may include the right to refuse certain treatments with serious medical conditions, also sometimes referred to as the right to die.
If you are making a valid living will, you are considered the principal. The person that you assign to manage your health care decisions, if needed, is considered the agent or surrogate. You can also name alternate agents in your living will in case your named agent is unable or unwilling to serve as agent for any reason. As the principal, you may also grant authority to the agent to appoint a successor or substitute surrogate. As previously stated, a living will only gives power to the agent if the principal’s attending physician determines that the principal lacks the ability to understand or communicate health care decisions, and the principal is permanently unconscious, or the principal has an end-stage or end of life medical condition. The end stage medical condition must be one that will result in death even with the continuation of medical treatment.
The principal has the ability to grant or limit authority of the agent. Authority granted can include authorization to health care providers to disclose health care information and records to the agent. This authorization should also be accompanied by a health insurance portability and accountability act (HIPAA) release form, granting authorization for medical information to be shared with the agent. A living will can also grant or limit the agent’s authority to make decisions for the principal regarding admission to and discharge from medical facilities or nursing homes. Additional authority to the agent can be granted or limited with regard to decisions related to employment or discharge of medical personnel, surgical procedures, treatment of pain, treatment for specific medical conditions, insurance decisions, donation of anatomical body parts, the authorization for pain medication that may accelerate the principal’s death, and to bring legal action to enforce the living will and the declarations the principal makes in the living will.
The principal may also make several declarations giving directions for his or her future medical treatment in certain circumstances. For instance, the principal can give directions on his or her desires regarding cardiac resuscitation, mechanical respiration, feeding tubes for nutrition and hydration, blood transfusions, surgery, invasive diagnostic tests, kidney dialysis, medications including antibiotics or pain medications, narcotics, chemotherapy or radiation, and irreversible brain damage or brain disease that does not have a realistic expectation of significant recovery.
The principal may also make declarations regarding anatomical gifts of his or her body parts, including the election to be or not to be a donor of eyes, inner ears, skin, heart, kidney, liver, blood, veins and arteries, organs, body parts, and/or other anatomical parts. The principal may also donate his or her complete body to science.
A living will should also be combined with other estate planning tools such as a durable health care POA and a combined mental health care declaration and mental health POA. For more information on durable health care POA’s, visit the durable health care POA page at MentchLaw.com. For more information on combined mental health care declaration and mental health POA’s, visit the combined mental health care declaration and mental health POA page at MentchLaw.com. Additionally, information on other estate planning tools can also be found at MentchLaw.com. It is recommended to start at the estate planning overview page for an overview of estate planning.
A living will is not just for elders or part of elder law estate planning, as accidents, cancer, organ failure, and disease, can strike young people as well as senior citizens. A living will allows the principal to designate an agent and grant or limit the agent’s powers, while the principal is healthy and of sound mind. Without a living will it can be difficult and time consuming for loved ones to get authority to make certain health care decisions for the principal. However, a living will can not only provide guidance as to your wishes and who your agent is to be, but it can also serve to help relieve stress and emotional decisions form loved ones.
Attorney Kirk E. Mentch, Esquire