By: Richard N. Ruprecht and Sigrid C. Haines
"All I ask of livin' is to have no chains on me/And all I ask of dyin' is to go naturally, only wanna go naturally"*
We all can relate to the song lyrics; it certainly seems safe to say that no one wants "to go" un-naturally! But how many of us have taken the trouble to execute valid heath care directives that address the thorny issues of just how naturally we want to go?
The Schiavo Lesson: Make Your Intentions Known
Perhaps the best lesson to be learned from this year's unfor-tunate Schiavo case is that a tragic situation may only be worsened if an individual fails to communicate clear decisions con-cerning his own health care. Family members, civil rights groups, ethicists, lawyers, judges, politicians and religious groups all had an opinion on the fate of the young woman who had lost the ability to articulate her wishes, as the media presented us with non-stop coverage of each day's developments in the sad saga. While we can do nothing to change the inevitable result of our own mortality, we can and should make health care decisions that will allow health care providers to understand our wishes and provide loved ones with a sense of comfort in difficult times. We offer here a brief summary of the instruments available for you to express your health care wishes.
When to Make an Advance Directive: While You Can
Congress enacted the Patient Self-Determination Act of 1990 to require most health care institutions to notify patients of their rights under state law to execute written "advance directives" containing the patient's health care instructions. Unfortunately, this notice is only given to patients as they are admitted to the institution; it is of little use to a patient who is unconscious or otherwise debilitated upon admission, as is so often the case.
Maryland, Virginia and the District of Columbia now have statutes recognizing an individual's ability to express health care decisions in the form of a written "advance directive" and to appoint an agent to make health care decisions if the individual is incapacitated. In all three local jurisdictions, the individual making the advance directive must be a competent adult, age 18 or over.
Advance Directives—Two Types: Living Wills and Health Care Powers of Attorney
There are two types of advance directives authorized by state law. The first is an advance directive for health care instructions, commonly known as a living will. An individual uses this document to spell out his/her health care preferences in certain specified situations: if death is imminent from a terminal condition, if he is in a "persistent vegetative state," or if he suffers from an "end-stage" condition. For each of these situations the individual should indicate his pre-ferred health care treatment, such as whether he wants to receive nutrition and hydration artificially (i.e., tube-feeding). Even if life-sustaining procedures are declined, the individual may always opt for medications or procedures to relieve pain. In a living will, an individual can also consent to organ donation and/or cremation upon death. Living wills can also specify what treatment should be provided.
The second main type of advance directive is commonly known as a health care power-of-attorney. An individual uses this document to name another person or "agent" to make any decisions concerning the individual's health care when the individual cannot otherwise make or communicate his health care wishes. Unlike the living will, the health care power-of-attor¬ney is not limited to specific sit¬uations. The agent may be any other competent adult and need not be the individual's spouse or relative. The agent should be asked to consent to the designation ahead of time. The power¬of-attorney can be tailored to include specific instructions for the agent in the event of certain circumstances. The statutes in Maryland and D.C. now expressly allow an individual to designate an agent to make mental health care decisions for the individual as well. The agent's authority does not impose personal financial liability on the agent for the health care services provided to the individual. The agent's authority ends upon the death of the individual (whereupon a duly authorized personal representative for the decedent's estate assumes control).
Both types of advance directives must be signed by the individual before two witnesses, and there are specific restrictions on who may act as a witness depending on the jurisdiction. The state in which the individual normally resides determines the applicable state law. Both Maryland and Virginia expressly provide reciprocity for advance directives validly executed in other states. A copy of the document is normally as accepted as the original. Copies of the documents should be available in times of emergency, not locked away in a safety deposit box or other inaccessible place.
Finally, it is important to note that both types of advance directives discussed above are fully revocable and may be changed by the individual so long as he remains competent. Also, so long as the individual is able to communicate his own decisions to health care providers, they will be followed, notwithstanding the advance directives.
*Lyrics from "And When I Die," Blood Sweat & Tears (1969), by Laura Nyro.
Richard Ruprecht practices in the firm's Estate Planning and Probate group. He can be reached at (301) 657-0154 or rnruprecht@lerchearly.com. Sigrid C. Haines chairs the firm's Health Care group. She can be reached at (301) 657-0152 or schaines@lerchearly.com.
