I am going to execute a Health Care Proxy. Should I also have a Living Will? -- Sean, Salem
For those who are not familiar with the terminology, a "Health Care Proxy" names and authorizes your health care agent, the person who will make decisions for you should you become incapacitated. A "Living Will" explains your wishes regarding medical care. Some lawyers and doctors believe everyone should have Living Wills in addition to Proxies and that our Living Wills should cover as many scenarios as possible, so our agents (and doctors) will have clear instructions for which medical interventions we desire for any given situation.
This approach may make sense for people who have very specific ideas about their medical treatment options or who do not want their agent to exercise any discretion. However, when you consider the number of permutations of medical conditions, prognoses, and treatments, this approach may be problematic. At a minimum, the principal would have to discuss artificial nutrition and hydration (feeding tubes and/or intravenous liquids), cardiac resuscitation, mechanical respiration, surgery, antibiotics, and pain medication, and explain how his wishes regarding these treatments might change depending on his condition and prognosis. Some may find this level of detail comforting, but others will have difficulty with it. Also, opponents of this "cover all the bases" approach argue that it lacks flexibility and fails to consider the possibility that medical treatments may change over time with the development of new and more effective measures that the principal, if competent, might wish to use. Most living wills are less detailed and contain a series of statements of the person's wishes for specific situations. Such as:
If I become permanently incompetent to make health care decisions, and if I am also suffering from a terminal illness, I authorize my agent to direct that life-sustaining treatment be discontinued.
In practice, Living Wills are not really necessary and, in fact, only Health Care Proxies are statutorily recognized in Massachusetts. Living Wills can be helpful to courts, agents and family members, but it is possible to execute a Health Care Proxy with "Living Will language" that spells out our general philosophy regarding medical intervention. Using this approach, a principal can execute just one, legally recognized document that gives some flexibility to her agent. Here is some language that I have used in Proxies:
I believe that dying is a natural part of life, not something to be avoided at any cost. If I develop an injury, disease, or illness regarded by my physician as incurable and terminal, or if said injury or illness leaves me unconscious or in a permanent vegetative state with no reasonable likelihood that I will recover or regain consciousness, and if my physician determines that the application of life sustaining procedures (including artificial hydration and nutrition) would serve only to prolong artificially the dying process, I request that such procedures be withheld or withdrawn and that I be permitted to die. I want treatment limited to those measures that will provide me with maximum comfort and freedom from pain.
So, the answer to your question is: You do not need a Living Will, but, depending on the level of control you wish to exercise, you may want one. Below, I have included a sample Living Will.
LIVING WILL
I, , of , Massachusetts, hereby make the following statement of my wishes as to artificial life sustaining procedures: If I develop an injury, disease, or illness regarded by my physician as incurable and terminal, and if my physician determines that the application of life sustaining procedures would serve only to prolong artificially the dying process, I request that such procedures be withheld or withdrawn and that I be permitted to die. I want treatment limited to those measures that will provide me with maximum comfort and freedom from pain.
This request is made by me voluntarily while I am of sound mind. This document shall serve as a statement to my family, physician, medical facility, health care agent and others of my wishes if the time comes when I am unable to participate in decisions with respect to my medical treatment. This request is made with the full knowledge that this document may have little or no legal effect. Even if this document is not binding legally, I urge those who care for me to honor my wishes as stated herein. To give guidance to my health care agent:
1. If I become permanently incompetent to make health care decisions, and if I am also suffering from a terminal illness, I authorize my agent to direct that life-sustaining treatment be discontinued. (YES) (NO) (Circle your choice and initial beneath it.)
2. Whether terminally ill or not, if I become permanently unconscious I authorize my agent to direct that life-sustaining treatment be discontinued. (YES) (NO) (Circle your choice and initial beneath it.)
3. I realize that situations could arise in which the only way to allow me to die would be to discontinue artificial feeding (artificial nutrition and hydration). In carrying out any instructions I have given above in #1 or #2 or any instructions I may write in #4 below, I authorize my agent to direct that (circle your choice of (a) or (b) and initial beside it): (a) artificial nutrition and hydration not to be started or, if started, be discontinued, -or- (b) although all other forms of life-sustaining treatment be withdrawn, artificial nutrition and hydration continue to be given to me.
4. Here you may include any specific desires or limitations you deem appropriate, such as when or what life-sustaining treatment you would want used or withheld, or instructions about refusing any specific types of treatment that are inconsistent with your religious beliefs or unacceptable to you for any other reason. You may leave this question blank if you desire.
Signed this th day of , 2006. _____________________________
Your Name _____________________________
Witness _____________________________
Witness______________________________
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