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Advance Health Care Directives 101

Why Do I Need A Living Will and/or A Health Care Proxy?

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A Living Will and/or a Health Care Power Of Attorney are needed to prevent the following from happening: 

  • You may be kept alive endlessly at your expense.
    • Doctors and health care facilities will do everything they can to keep you alive.  It's what doctors are trained to do. They may even be required to by state law unless you have clearly expressed a contrary desire. It is also in their financial self interest to keep you alive  and treat you as long as possible.The result is you may be subjected to unwanted, prolonged, and expensive treatment - and the likelihood that you or your estate will have to pay for it.
    • Quality of life is not their concern. Keeping you alive is. In fact, there may be no practical end to the treatment. For instance, in the Terri Shiavo case, think about how many years she was kept alive on machines even though it was later proved that her brain was no longer functioning.
    • Courts (and most health facilities) require clear and convincing evidence that the patient expressed a desire to forego life sustaining treatment while competent. Proving that a person made clear statements can be difficult and can result in expensive, time consuming litigation. Litigation can be started by family members who may be divided or uncertain about your wishes. It can also be started by the health care provider if a doctor or hospital has doubts about your wishes and/or whether the procedures/proof required in your state were followed. Advance Directives provide the required proof.
  • Someone will be appointed to speak for you who is not necessarily the person you would choose.
    • Most states have "Surrogate consent" laws which determine who makes medical decisions for you in the event you can't speak for yourself. Generally, the named people are legal relatives, starting with a spouse. The laws do not take into account whether the person knows your wishes, or whether he or she would honor them even if the person knows your wishes.
    • In those states without Surrogate Consent laws, the courts determine who has the authority - not you.
  • As a general matter, even a person chosen to speak for you cannot end unwanted treatment.
    • Even when it is settled who can speak for you, hospitals and other health care facilities can be reluctant to end treatment unless there is clear and convincing evidence of your desires. The result can be expensive, public, stressful litigation to compel what the family believes you would have wanted can result.
    • If the family can't prove the incapacitated person's desires to the Court's satisfaction, unnecessary funds are expended and treatment the incapacitated person would not have wanted is given and/or extended. 
  • There may be conflicts with the health insurance provider.
    • An insurance provider may move to stop payment because of lack of evidence that you wanted to continue treatment in the circumstances.
  • There may be disagreements within a family.
    • Unless you appoint a health care Proxy and/or make your wishes clear in writing, family members can battle for a long, expensive time. In the Terri Schiavo situation, she had told her husband what she wanted if she became incapacitated and unable to speak for herself. She didn't put her wishes in writing. Family members went to court and stayed there for many, expensive years.. 

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Surrogate Consent Laws

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