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The ABCs of Living Wills and Health Care Proxies

By: Aytan Y. Bellin, JD
Introduction
Ordinarily, when you go to a physician for medical care, you and your physician discuss your treatment options and you decide which treatments, if any, you wish to undergo. The law recognizes that if you are an adult of sound mind, neither your physicians nor anyone else may treat you without your consent. This is true even if the treatments are necessary to keep you alive.

There are occasions where some people, because of their personal, religious or other beliefs, the nature of their illnesses, or the nature of proposed life-sustaining treatments, would choose to forgo such treatments. For example, many people feel that if they were to fall into an irreversible coma with no hope of recovery, they would rather be permitted to die than be hooked up to respirators and other machines indefinitely.

Unfortunately, when decisions about life-sustaining treatment have to be made, people are often in no condition to express their treatment wishes. Without evidence of such wishes, some state laws make it very difficult to stop life-sustaining treatments even if family members or close friends believe that the patient would have wanted such treatments stopped.


A good example of this is a case involving twenty-five year old Nancy Cruzan. In 1983, Nancy was severely injured in an automobile accident and lost her mental faculties. To keep her alive, the hospital hooked her up to equipment that provided her artificial nutrition and hydration. After learning that Nancy had almost no chance of regaining consciousness and recovering her mental abilities, Nancy?s parents asked a court to permit them to disconnect the nutrition and hydration equipment. The court refused to do so, even though there was evidence from one of Nancy?s friends that Nancy would not have wanted to be kept alive under these circumstances. The court found this evidence insufficient as the state law required clear and convincing evidence of Nancy?s wishes.

Fortunately, all states have created mechanisms, known as advance directives, through which you can help to assure that your treatment preferences will be known and acted upon even if you are incapacitated when medical decisions have to be made. Two such mechanisms are living wills and health care proxies.

A living will is a document in which you can write down in advance your wishes regarding life-sustaining treatments should you become terminally ill and unable to convey your decisions to your physician. For example, in a living will you can direct that, should you become terminally ill and mentally incapacitated, you do not want to be kept alive on a respirator. You can also enumerate the circumstances in which you wish to receive life- sustaining treatments. Thus, you could direct in a living will, that should you become incapacitated, you want to be kept alive by artificial nutrition and hydration. Directions in living wills will not be followed as long you are capable of making your own treatment decisions. In addition, the creation of a living will is entirely voluntary, and therefore no one can require you to do so.
Are living wills recognized in every state?
Laws authorizing living wills have been enacted in over 40 states. However, these laws can vary in important ways. For example, according to some state laws, instructions in living wills must be followed only when individuals are suffering from a disease that will shortly lead to their deaths, regardless of medical interventions. Other states? laws provide that living will instructions are effective even if a person is in an irreversible coma that will not cause the person?s death. In some states, individuals may write living wills at any time while in others, individuals may not write living wills once they have acquired a terminal illness. Some states recognize living wills for specific periods of time, for example five years, while other states place no time limits on the effectiveness of living wills. Significantly, some states will not legally acknowledge instructions in living wills that direct the removal of feeding tubes that provide nutrition and hydration.
Advantages and disadvantages of living wills
Using a living will allows you to specify the circumstances under which you wish to receive particular types of life-sustaining treatment. Thus, living wills can give you some control over your medical care when life and death decisions need to be made. However, living wills are ordinarily not used to delineate treatment decisions you would wish put into effect in the event you were to suffer from a nonterminal illness and lose your ability to make treatment decisions. For example, if you were to become unconscious as a result of a non-life-threatening fall, the instructions in your living will would usually be irrelevant. In addition, even in a terminal illness context, it is impossible to anticipate in a living will all of the possible treatment choices with which you might be faced. Thus, regardless of how detailed you make your living will, there still may arise unexpected circumstances not covered by it. Another difficulty with using living wills is that conflicts can arise over its proper interpretation when treatment decisions need to be made.
In one case, a man named Tom Wirth wrote in his living will that he wanted life-sustaining treatments withheld or withdrawn if he experienced "an extreme mental deterioration, such that there was no reasonable expectation of recovering or regaining a meaningful quality of life." As a result of complications from AIDS Related Complex, Tom became incompetent and unable to express his treatment wishes. The hospital caring for Tom wanted to treat him with antibiotics so that he could regain consciousness. However, Tom?s good friend John Evans stated that to Tom, "recovering or regaining a meaningful quality of life" meant being cured of AIDS Related Complex. Because the hospital?s treatments would not cure this condition, John Evans objected to the hospital providing Tom with antibiotics or artificial nutrition or hydration. The court ruled in favor of the hospital because, among other things, the phrase in Tom?s living will, "recovering or regaining a meaningful quality of life" was ambiguous.