LIVING WILLS

by Kenneth Vercammen, Esq.
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LIVING WILLS

By KENNETH A. VERCAMMEN and RANDALL KEITH BENJAMIN,II

All States have declared that competent adults have the fundamental right in collaboration with their health care providers, to control decisions about their own health care. States recognize in their laws and public policy, the personal right of the individual patient to make voluntary, informed, choices to accept, reject or to choose among various alternative courses of medical and surgical treatment.

WHY LIVING WILLS

Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure. For some individuals the possibility of extended life is experienced as meaningful and of benefit. For others, artificial continuation of life may seem to provide nothing medically necessary or valuable, serving only to extend suffering and draw out the dying process. States recognize the inherent dignity and value of human life and within this context recognize the fundamental right of individuals to make the necessary health care decisions to have life-prolonging medical, surgical, or procedure means provided, withheld, or withdrawn.

States acknowledge the right of competent adults to plan ahead for health care decisions through the execution of advance directives, such as living wills and durable powers of attorney, and to have their wishes respected, subject to certain limitations.

PURPOSE OF LIVING WILLS

In order to assure respect for patients' previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients' interests both in their self-determination and well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and policy of this State and the Legislatures have enacted Living Will/ Advance Directives for Health Care Acts.

REQUIREMENTS OF STATUTE

The advance directive for health care (Living Will) requires a writing executed in accordance with the requirements of the state law. It must be signed and dated in front of an attorney at law, other person authorized to administer oaths, or in the presence of two subscribing adult witnesses. If the two adult witnesses are used, they both must attest that the declarant is of sound mind and not under undue influence. A designated health care representative shall not act as a witness to the execution of the advance directive. Since this is a legal document, it must be executed properly to be valid under the statute.

HEALTH CARE REPRESENTATIVE

The declarant must designate one or more alternative health care representatives. "Health care representative" means the person designated by you under the Living Will for the purpose of making health care decisions on your behalf.

WHEN DOES THE ADVANCE DIRECTIVE BECOME

OPERATIVE

An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to the Act that the patient lacks capacity to make a particular health care decision.

Treatment decisions in pursuit of an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish and where appropriate confirm, a reliable diagnosis for the patient which shall include the attending physician's opinion concerning the nature, cause, extent, and probable duration of the patient's incapacity. This soon after shall be made a part of the patient's medical records. For additional information or to have a "Living Will" prepared, see your attorney. In addition, be certain your Last Will and testament is up to date.

1. Introduction:

As Americans, we take it for granted that we are entitled to make decisions about our own health care. Most of the time we make these decisions after talking with our own physician about the advantages and disadvantages of various treatment options. The right of a competent individual to accept or refuse medical treatment is a fundamental right now fully protected by law.

But what happens if serious illness, injury or permanent loss of mental capacity makes us incapable of talking to a doctor and deciding what medical treatments are best for us? These situations pose difficult questions to all of us as patients, family members, friends and health care professionals. Who makes these decisions if we can't make them for ourselves? If we can't make our preferences known how can we make sure that our wishes will be respected? If disagreements arise among those caring for us about different treatment alternatives how will they be resolved? Is the

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Kenneth Vercammen, Esq., Kenneth Vercammen & Associates, PC | Attorney Advertising

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