by Gene Hoyt JD, MD
Who wants to make a Will? No one! It is not pleasant to sit down and think of End of Life issues. But, it should be done by each of us. Like the Will that passes property, your Living Will allows you the opportunity to voice your desires for medical treatment at the end of life. Many think that Living Wills, also called Advance Directives, are only for the old folks. Not true! Illness and trauma can occur at anytime and at any age. Your voice needs to guide your caregivers through an emotional time. If you have a Living Will, you decide on what care you want and spare your family the grief of decision making. Many people complete Living Wills at the time they devise real and personal property with a traditional Will. The State of Oklahoma provides us with simple and concise forms for Living Wills and Durable Powers of Attorney.
A Living Will is your expression of medical care you want or don’t want if you have a terminal illness. The Living Will is a relatively new document. In the past, your spouse or other family members spoke for you. But, now you must speak for yourself. If you do not have a Living Will, the state presumes you want all appropriate medical care to include cardiopulmonary resuscitation which may include chest compression, ventilator care to breathe for you, and tube feeding to maintain nutrition. Your family can overcome this presumption only by obtaining a costly Legal Guardianship over you. You can spare your family of this time consuming and costly legal proceeding by having a Living Will. If you have a Living Will and have appointed a Healthcare Proxy (someone who acts for you) there can be little doubt of your intentions and you save your family much emotional stress and grief. Your cultural and religious beliefs can also be expressed in your Living Will.
Just as with a property will, the maker of a Living Will must be 18 and of sound mind. A Living Will must be witnessed by two disinterested people. As long as you are competent you make your own decisions for yourself and your decisions for ongoing care must be followed regardless of your illness or condition. A Living Will becomes effective only if you are unable to make informed decisions and have a Terminal Condition. A Terminal Condition is defined as an incurable condition from which a person will die within 6 months, even if treatment is administered. Two physicians must certify a Terminal Condition and document in the medical record before a Living Will becomes effective. Your medical decision maker, someone you know and trust, is called your Proxy. The Proxy will make health care decisions in your place. The Proxy must follow all of the instructions you have given in your Living Will. The Proxy speaks with your voice. Always, always talk to your Proxy and tell them what you want or don’t want as part of your medical care. You should also appoint an Alternate Proxy to act if the primary is unable.
The Oklahoma statute allows you to Will your body or organs for transplant or research and education.
A unique feature of the Oklahoma Living Will statute allows a pregnant woman, who is in a Terminal Condition, through her Proxy, to decline and refuse all life-sustaining treatment including respiratory support and nutrition. Through a Living Will, a pregnant woman can specifically provide for treatments to be withheld or withdrawn.
Another document you should know of is a Durable Power of Attorney. The term durable means the Power of Attorney will be valid if you can no longer make decisions for yourself. A Power of Attorney may be general or specific. A Durable Medical Power allows your chosen representative to authorize your medical care in other than Terminal Conditions. If you are unconscious from illness or trauma, the Durable Power of Attorney for Healthcare allows your delegate to make decisions on your behalf until you are able to make medical decisions for yourself.
These documents are important to you and to your family. Talk to your family. Talk to your physician and to your attorney. Let your voice be heard through your Living Will and Durable Power of Attorney for Healthcare.
Many articles have been written concerning Advanced Directives. One of the best articles and the article which is the basis of this article is “Your Right to Decide”. It is much more complete than my summary and provides you with Oklahoma forms and virtually line by line instructions to complete Living Wills and Durable Powers by yourself. The article is found at www.senior-law.org.
(Ed.Note) Dr. Gene Hoyt is a well-known physician and Trustee of the Oklahoma State Medical Association. Few people know he is also an attorney. A former Oklahoma Assistant Attorney General, U.S. Air Force Judge Advocate and Trial Judge, Dr. Hoyt continues to write and lecture about topics in Law and Medicine.