Essential Considerations

Some things that everyone should know about living wills and durable powers of attorney for health care.

The term advance directive is used to describe various different types of documents that can be used to direct your medical care if you were to lose decision-making capacity.

The first of these, a living will, is a statement about the kind of care that you would or wouldn't like to have if you were critically ill or injured and had no ability to speak for yourself.

The second, a durable power of attorney for health care (or medical power of attorney), allows a representative to make decisions for you. Your surrogate—known as an attorney-in-fact—is obligated to make the kind of decisions that you would make were you able to do so.

Idaho combined these two documents with the The Medical Consent and Natural Death Act in 2005. It is an excellent idea to have this combined document. There are, however, a few things that should be considered before you sign off on either:

  1. Advance directives are created by state law (statutes) and are therefore limited by the language of the statute.
  2. In some states, advance directives only authorize the refusal or removal of life-sustaining medical treatment (LSMT) when you are either a) terminally ill or b) permanently unconscious. With such a document there is some question about whether treatment could be withheld if you were to have dementia or some other impairment of decision-making capacity short of unconsciousness.
  3. Although the Supreme Court has said that there is no difference between artificial feeding and hydration (tubes) and other forms of medical treatment, some states make a distinction and require that you specify that your documents are intended to include the former.
  4. Some states require that advance directives be notarized; others require witnessing. If you live in a state that allows witnessing, be sure that you follow the witnessing procedures. Most laws require that your sign in the presence of two witnesses who, in turn, sign in your presence and that of one another. (Note: Idaho no longer requires witnesses, or notarization.)
  5. If you prepare both documents, be sure that you know which of the two is likely to be controlling. Some states give precedence to the terms of a living will; others treat the durable power of attorney as dominant. Make sure that the terms in the controlling document do not restrict choices that you have expressed in the other.
  6. You do not have to use the "standard" or "generic" forms. All states allow you to create an individualized or "idiosyncratic" advance directive, although many require that certain specific language from the statute be included. If you are unsure about how to do this, you may want to consult your lawyer.

This isn't always simple, but it is something worth spending the time to understand and then doing.

If you're interested in further information, an inexpensive book by Gere Fulton is worth looking up: Your Guide to Living Wills in Ohio and Durable Powers of Attorney for Health Care.

Gere writes: "While the book was written right after the Ohio legislature passed one of the country's worst advance directive laws and portions of it pertain to the specifics of that law, it also contains lots of good background information on advance care planning. You'll note that the price has also been marked down to next-to-nothing."