DO YOU NEED A LIVING WILL?

The controversy around the death of Terry Schiavo was far reaching.  Congress created a bill, signed by the President into law, which allowed federal courts to hear Schiavo’s case.  No matter what opinion you may have on the Terry Shiavo case, we can all agree that much of what happened could have been prevented if Terry Schiavo had drafted and signed a living will.  Had Schiavo communicated her last wishes in a valid living will, or a durable power of attorney for healthcare, there would have been little grounds for the nationwide controversy.
 
Have you given proper instructions regarding your medical treatment if you are unable to tell medical providers what you want?  If you have not, others may make the decision for you.  You may not be given the chance to live how you want, or you may be kept alive with artificial means of which you did not approve. 
 
What is a living will?  What is a durable power of attorney?  Please read on to learn the answers to these important questions.

Q: What is a living will in comparison to what I know of as a “last will?”

A: The common term “will” leads many people to believe these are similar documents. A “last will” is a declaration of how you want your assets to be distributed.  Otherwise stated, it deals with property.  In comparison, a living will tells others how you want to be treated if and when you are too ill to direct your own care. 

Q: What can I put in my living will?

A: There are standard living will forms that are broadly worded.  They give you the option of checking off one of the following categories: (1) no life-sustaining treatment, (2) treatment for restoration, (3) treat unless permanently unconscious, or (4) maximum treatment.  There is also a portion of the document where you can “check off” whether you want artificial nutrition and hydration. 

Although these forms are valid in the eyes of the law, they can clearly lead to confusion.  We recommend that you have more specific wording so your intent is clear.  For example, consider specifying procedures which you would, or would not, want if you become incapable to direct your own care.  In your living will you could specify whether or not you want CPR, feeding tubes, pain killers, to be put on a respirator or even different types of surgery.

 You can even specify a time line for when certain steps in health care no longer need to be taken.  For example, you could put in your living will that you do not want resuscitation if you’ve been in a coma for more than six months.

 The wording, to avoid unnecessary confusion, needs to be clear.  Therefore, we suggest you seek professional advice in preparation of this document, including legal, medical and/or spiritual advice.

Q: How does a “living will” differ from a “durable power of attorney?”

A: Both documents are referred to as “Advanced Health Care Directives.”  With a living will you are declaring your desires for health care for situations usually involving terminal illness or some medical condition that leaves you comatose or in a vegetative state. 

 However, a durable power of attorney is a document that is more flexible than a living will.  By creating, and signing a durable power of attorney, you are appointing an agent to carry out your medical decisions in accordance with a set of directions that you create.

Q: What are the benefits of a living will compared to a durable power of attorney?

A: A living will is a direct declaration from you regarding what type of medical care you want in certain situations where you are unable to convey what you want.  A durable power of attorney can also give directions of what you want, but by signing that document, you are declaring that you have named a trusted person to make your medical choices.  In essence, the durable power of attorney enables another person to “fill in the blanks” if your intent is not clear from a set of directions.

Q: If I sign a living will or durable power of attorney, how long are the documents valid?

A: Both documents will remain effective until your death or until you revoke the document, meaning you declare it void. 

 If you appoint a spouse through your durable power of attorney, and your marriage dissolves or is annulled, those circumstances create an “automatic revocation” of the durable power of attorney document.  In addition, in the original document you can name an alternate agent if your primary agent is unable or unwilling to carry out your wishes.

Q: Are there any requirements to create a valid living will or durable power of attorney?

A: South Dakota law mandates that the person creating the document be a competent adult, and that you have two witness signatures to your signature.

 A separate person, called a Notary Public, may also acknowledge your signature and the signatures of the two witnesses by signing and sealing the document, all of which is done with the witnesses under oath.  Most of the attorneys and staff at Beardsley, Jensen and Von Wald are registered notaries with the state of South Dakota.

 It is always a good idea to consult with an attorney when creating these types of documents, to ensure their validity.  A majority of the time, the question of validity of a document arises when it’s too late to rectify the situation.

Q: When will my medical care providers start applying the directions from my living will?

A: Pursuant to South Dakota law, a living will becomes operative when your attending physician and one other physician determine you are in a terminal condition and are no longer able to make decisions regarding your health care.  Once that decision is made, your living will applies and your health care providers have the duty to follow the directions given in your living will.

Q: Are there instances when a living will can be “thrown out?”

A: A living will can be found invalid if it’s not executed properly pursuant to state law, or if it’s shown that you signed the document without proper mental capacity to understand what you were signing, or if you were forced into signing the document.

 You have a right to receive the care you want.  In addition, you also have a right to say no to certain treatment.  Hopefully you will always be able to declare what you want.  Unfortunately, this may not always be the case.  The attorneys at Beardsley, Jensen and Von Wald are ready to help you prepare your living will or durable power of attorney and to ensure that the document you create is legally sound.