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FAQs on Living Wills
Will the courts
recognize my living will?
Colorado has officially
recognized the living will in the Colorado Medical Treatment Decision Act. This
Act is codified at Colorado Revised Statute, Sections 15-18-101, et seq.
Under the Act, a mentally competent person 18 years or older may execute a
declaration that any medical procedures or interventions which serve only to
prolong the dying process be withheld or withdrawn if at some future time he or
she is comatose and has an incurable or irreversible medical condition which
could generally only be prolonged by extraordinary measures.
The living will only
operates when a patient is determined to be in a terminal condition.
What sort of
declarations can I make in a living will?
In the living will, you can
direct your doctor to continue, discontinue, or to continue for a specified
period of time any artificial nourishment.
A living will can direct
your doctor to withhold or withdraw artificial nourishment if it is the only
procedure being provided. If a doctor determines that this will cause you pain,
he or she may override the discontinuance of artificial nourishment, and give
you enough nourishment to alleviate pain.
A living will can be
general or very specific. The most common statement in a living will is to the
effect that:
“If I suffer an incurable, irreversible illness, disease, or condition and my
attending physician determines that my condition is terminal, I direct that
life-sustaining measures that would serve only to prolong my dying be withheld
or discontinued.”
More specific living wills
may include information regarding an individual’s desire for pain relief,
antibiotics, hydration, feeding, CPR, and the use of life-support equipment
including ventilators.
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Will physicians honor
my living will?
Attending physicians are
legally required either to comply with the terms of a declaration or transfer
the care of the patient to another physician who is willing to comply. Failure
either to comply or transfer care is considered unprofessional conduct. C.R.S.
Sec. 12-36-117(1)(s).
When presented with a
declaration, the attending physician is required to have the patient examined by
another physician. If both physicians determine that the declarant has a
terminal condition, they will certify so in writing and notify the
patient’s spouse, children, parent, or attorney in fact under a durable power
of attorney, if reasonably possible. If the declaration has not been
challenged within 48 hours of the notice, the physician is then required to
withdraw or withhold the life-sustaining procedures.
Does a living will
apply to all medical circumstances?
No. As long as patient is
able to make health care decisions, the living will cannot be used. In
Colorado, your living will does not go into effect until two doctors agree in
writing that you have a terminal condition.
To aid your families and
physicians in making medical decisions in those circumstances, you may wish to
execute a detailed advanced medical directive which expands on your
wishes if particular circumstances arise.
Who can complete a
living will?
Anyone over the age of 18
years who is of sound mind can complete a living will. To be legal, it must be
signed by you and two adult witnesses.
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Who can witness my
living will?
Two adult witnesses must
sign your living will. The following cannot sign or witness a living will:
patients in the facility in which you are receiving care, any doctor or any
employee of your doctor, any employee of the facility or agency providing your
care, your creditors, or people who may inherit your money or property.
Can a living will be
revoked?
You can destroy a living
will any time you change your mind. A living will can be revoked by the patient
at any time and in any manner, with the patient simply tearing up the living
will document, expressing orally to witnesses the desire to revoke the document,
or in writing. Health care professionals who witness such revocations will
document them in the record.
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If you cancel or change
your living will, you should tell your family, your doctor, and anyone who has a
copy of it that it has been canceled or changed.
What are the
advantages to having a living will?
1. Difficult decisions about future care are made while you are competent,
alert, and not sick.
2. Your
directions allow you to die under circumstances you have chosen.
3. A living
will removes the burden of decisions having to be made by grieving loved ones when
you are dying.
4. A living
will can reduce medical expenses.
5. A living
will states your desires regarding organ donation at your death.
What are some
disadvantages to having a living will?
1. A living
will is effective in a very narrow set of circumstances.
2. The
decisions you made may be hard for your family and create disharmony.
3. A parent,
adult child, spouse or agent under a power of attorney can challenge the validity
of the living will in court.
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What is a medical
durable power of attorney?
The medical durable power
of attorney permits you to name an agent to make decisions on your
behalf. It permits the agent to continue to act on your behalf even if you
become incompetent if the power of attorney so provides.
It can be helpful to
execute a power of attorney to give a loved one specific authority to make
medical decisions. This authority may be included in a general power of
attorney or in a separate medical durable power of attorney.
Is a medical durable
power of attorney recognized by the courts?
In 1992, Colorado adopted
the Patient Autonomy Act. This law specifically authorizes the creation of
medical durable powers of attorney. Through this device, you may instruct
health care providers to withdraw artificial nutrition and hydration and
authorize the application or withdrawal of various medical procedures. The law
affirms the right of individuals to establish, in advance of the need for
medical treatment, any directives and instructions in the even the person lacks
the decisional capacity to provide informed consent to or refusal of medical
treatment.
The Colorado Patient
Autonomy Act has given greater authority to individuals holding durable powers
of attorney concerning medical care. A medical power of attorney can be as
specific or as general as you wish. However, you should recognize that an agent
under a medical durable power of attorney is not generally subject to court
supervision, so this should be considered only if you name an agent you trust so
completely that you are comfortable giving life and death decision making powers
to that person.
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What kind of
instructions can I include in a medical durable power of attorney?
A medical durable power of
attorney can be used to give specific instructions to the agent about your
quality of life preferences and what factors you wish to be taken into account
in making medical decisions, including the power to make an anatomical gift.
It may contain instructions
to your agent about specific medical treatments, such as decisions about
surgery, diagnostic tests or procedures. It may include a specific course of
treatment for a known disease or condition, or a decision regarding nursing home
care or other out-of-home placement. You can name an agent without giving
specific instructions to that person. You may also leave instructions as to the
disposition of your remains
Many persons who sign a
medical durable power of attorney also attach another document called “A
Values History Form,” which gives you an opportunity to discuss your values,
wishes and preferences, as well as your overall attitude toward life and
illness. This document can be very helpful to your agent in making specific
decisions.
When does a medical
durable power of attorney take effect?
Advanced directives only
take effect when the patient loses the ability to make his or her own health
care decisions.
As long as you are able to
make decisions, your consent must be obtained for medical decisions. Health
care providers cannot legally ignore the patient in favor of one’s agent or
written instruction.
Who can be given
medical durable power of attorney?
You may appoint anyone to
be your health care agent so long as the person is at least 18 years old,
mentally competent, and willing to serve as your agent. The person named has no
legal obligation to serve and is not responsible for the financial costs
associated with treatment. Your agent doesn’t need to live in Colorado, but it
usually makes things more convenient. You might also consider naming a second
person to serve in case the first person cannot.
What happens if I
name my spouse as agent, but we get divorced?
If you appoint your spouse
as your agent, and later you are divorced, legally separated, or your marriage
is annulled, your former spouse is automatically removed as your agent unless
expressly stated otherwise in your medical durable power of attorney.
Can I revoke a
durable medical power of attorney?
Yes. The patient can
revoke a durable power of attorney at any time and in any manner.
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Will doctors try to
resuscitate me if I have advanced directives?
While it is true that most
people use advanced directives to avoid being kept alive against their wishes
when death is near, it is a mistake to assume that the existence of an advanced
directive means, “Don’t Treat.”
Advance directives are NOT
“do not resuscitate” orders. “Do not resuscitate” orders are written by doctors
to indicate that a patient should not be resuscitated. The order may be written
to reflect a patient’s or surrogate’s expressed wishes about resuscitation, or
because the patient will not benefit from resuscitation.
For someone with a living
will or medical durable power of attorney, CPR may be appropriate if they are
suffering from an acute life-threatening condition. Patients with advance
directives may also want aggressive treatment for potentially reversible
conditions.
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Will the courts
respect my advanced medical directives?
The U.S. Congress has also
shown support for advance directives by enacting the Patient Self-Determination
Act. The Act requires that all hospitals receiving Medicaid or Medicare
reimbursement must ascertain whether patients have or wish to have advance
directives.
In 1990, the United States
Supreme Court heard the case of Cruzan vs. Director. This case involved
the desire to discontinue the percutaneous gastronomy feedings of Nancy Cruzan.
The U.S. Supreme Court decided in favor of the individual right to refuse
treatment, even life-sustaining treatment. The Court refused to hand down a
specific decision on medical treatment in the case. When the case was referred
back to the Missouri Supreme Court, the court found evidence of a verbal advance
directive that was deemed sufficient to support the refusal of medical
treatment.
How do health
professionals know if I have an advanced directive?
Many hospitals and clinics
will ask the patient or family upon admission about the existence of advanced
directives when they are admitted to the hospital. The existence of an advance
directive is documented prominently in the medical chart. Also, health
professionals should document the content of discussions about the patient’s
end-of-life desires or any expression of treatment preferences.
A web-based registry is
also available to store an electronic version of your health care directive and
provide copies as needed to health care providers anywhere in the country.
There is no charge for this service at
www.uslivingwillregistry.com Started in
1996, this operation has about 15,000 participants.
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