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Most of us can go through our lives needing few legal documents, and
those documents we have usually deal with our possessions -- a property
deed, the titles to our cars, our wills, etc. Ironically, it is in preparation
for the end of our lives or our relatives' lives that legal documents
may be most important, because they affect our right to make decisions
about the kind and duration of medical care and treatment, and even
about death.
It is best to decide these issues and develop the correct legal documents
well before decisions must be made. It is especially important to have
them before our elderly relatives or we:
- Become very ill
- Must have surgery
- Become mentally unable to make decisions or care for themselves
Since we cannot predict when these circumstances might arise, it's
wise to prepare now. The natural tendency is to put off discussions
and decisions about end of life issues. We believe that there will be
plenty of time. But if you wait until they're needed, it's often too
late.
Advance Directives. Are written instructions regarding future
medical treatment in case a person is incapable of making decisions
for him or herself. Advance directives include living wills, powers
of attorney, and "do not resuscitate" (DNR) orders.
Power of Attorney. Authorizes one person to act on behalf of
another in certain legal and business matters. The person authorizing
the power of attorney may still do all these things on his/her own behalf,
but names another person who may handle these legal matters as well.
A power of attorney document has a specified end date at which time
the power to act ends.
Durable Power of Attorney. Stays in effect when the person is
incapacitated. A regular power of attorney is revoked when the person
becomes incapacitated. In general, neither power of attorney nor durable
power of attorney enable someone else to make health-care decisions.
Medical Durable Power of Attorney. Authorizes someone (a "health
care proxy" or "agent") to make health care and treatment
decisions when another person is incapacitated or unable to communicate.
Unless you legally appoint someone to make decisions for you, physicians
and hospitals will make those decisions, and they may not be what you
want. Everyone should have a durable medical power of attorney. It is
important to remember certain features of durable powers of attorney:
- They must be made before the person becomes incapacitated. Once
the person is incapacitated, it is too late to draw up these documents.
- The person named as power of attorney does not become the decision-maker
as soon as the document is signed, only when the author becomes incapacitated.
- The person named as power of attorney must agree to take on that
responsibility, and he/she has the right to withdraw from that role
in the future.
Incapacity. These advance directives go into effect when a person
is incapacitated, and a certain process must determine incapacity:
- An examination, prescribed by state law, must be performed. The
examinations must be documented in the person's medical record.
- The examination must find that the person is incapable of making
decisions.
Living Will. Specifies the treatments (medical care and nourishment)
that are wanted as well as those that are not wanted in the event of terminal
illness or injury. Note that most living wills are limited to terminal
illness. Therefore, it is advisable to have a Medical Durable Power of
Attorney and a written statement of your wishes even if you also have
a living will.
CPR Directive. Instructs emergency medical personnel to initiate
or not to initiate cardiopulmonary resuscitation (CPR) if the person
is found with no heart beat or breathing. The CPR directive must be
signed by a physician and should be included as part of the patient's
medical record. It is also prudent to attach a copy to the refrigerator
and/or store a copy in the medicine cabinet at home, since emergency
response personnel (EMT's, ambulance crews) are instructed to look there
for advance directives. Without a CPR directive, it is presumed that
a patient wishes and consents to CPR.
Conservatorship. A court-ordered decree naming another person
to assist in the management of finances and property in the event of
incapacity. A conservator does not have power over personal or health
care decisions.
Conservatorship can be expensive and can be difficult to terminate,
so it isn't as attractive as other advance directives.
Guardianship. Similar to conservatorship in that it is appointed
by the court, but a guardian has power over a wider range of decisions,
including health care decisions.
Some Summary Tips on Legal Matters
Plan ahead and settle these legal matters in advance. It may be difficult
to discuss issues as sensitive as finances, end-of-life care and death,
but it is far easier to have these discussions now than to attempt them
during a crisis. Furthermore, if you wait, and your relative becomes
incapacitated, it's too late to write advance directives, and your loved
one may lose the chance to decide the kind and duration of care and
treatment she wants - someone else will make those decisions for her.
Advance directives can spare the family great heartache and regret.
If they haven't already done so, help your aging relatives prepare advance
directives now. (And while you're at it, prepare your own advance directives).
Talk with your relative about their wishes. If he/she becomes unable
to make health care decisions, whom do they want to make those decisions
for them? Whom do they trust, who knows them well and is nearby? In
Colorado, that person must be at least 21years old.
When she contemplates a terminal illness or dying, what is she most
afraid of? Does she want life support treatment?
It's often wise to have these discussions with the family physician
and clergy as well as family members.
Draw up a Living Will, a Medical Durable Power of Attorney and/or an
advance directive that expresses your relative's wishes, and review
them periodically. As long as your relative is not incapacitated, he/she
can always change or revoke them if their wishes change.
You can obtain the necessary forms from physicians or health care providers
or in bookstores and libraries. They are not complex, and you can fill
them out yourselves. However, it is wise to have them reviewed by an
elder law attorney.
Over 1/3 of advance directives aren't found when they are needed, so
make sure others know that you've written out your wishes, and where
the copies are. Let family members know where the original copies of
documents are kept, and be sure that family members and your relative's
primary physician have copies of the documents.
Living wills and health care proxies can be registered at uslivingwillregistry.com
or (800- 548-9455). If a hospital requests it, a living will can immediately
be faxed to that hospital.
For More Information
CPR Directives can be obtained from the Colorado Department of Public
Health and Environment.
For good and comprehensive information about the pros and cons of end
of life emergency medical care (e.g., CPR, mechanical ventilation) contact
the Colorado Collective for Medical Decisions at (303) 788-1198.
A good overview and a form that combines a Living Will and a Health
Care Power of Attorney can be found in "Shape Your Health Care
Future With Health Care Advance Directives", produced by the AARP,
American Bar Association and the American Medical Association.
One of the best forms we've found is called the "Five Wishes".
It's uncomplicated, and thorough. It also serves the purposes of both
a health care power of attorney and a living will -- it lets you name
someone to make health care decisions for you and lets you specify the
kind of end-of-life care you desire. It is valid in 35 states including
Colorado. Contact agingwithdignity.org
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