One of the many documents a trust attorney in the Atlanta area will encourage clients to put together is a living will. These documents have been considered incredibly important in both the legal and medical fields for 40+ years. A living will provides you with the opportunity to make your medical wishes known should you become incapacitated and unable to make decisions at the time. A living will often considers things like whether or not you want to be on life support and how you feel about doctors taking “extraordinary” measures to prolong your life.
There are a lot of positives to a living will. For example, it can take some of the burden off of your loved ones who are likely already in a state of shock over your incapacitation. In addition to worrying about your health and grieving over your condition, the people closest to you may also be called upon to make incredibly difficult decisions regarding your health care. Choosing to end life support for a spouse or parent is a heart-wrenching decision, and if you can take that burden from your loved one, then why wouldn’t you?
A recent Wall Street Journal article takes a deeper look into the usefulness of living wills, and some of their findings are contrary to popular belief about these documents. You can take a look at the article, “A New Look at Living Wills,” but some of the basic points made include:
- Living wills may be too “black and white,” while actual medical emergencies often fall into a “gray area.”
- Doctors have a limited ability to predict a patient’s outcome, so it is difficult to use their best guesses as a measure against which to determine if life support should be withdrawn or not.
- In addition to doctors and patients, ethicists are weighing in on the usefulness of living wills, and many of them are leaning away from using them at all.
One of the biggest problems with a living will is that the wording can be rather vague. This can be especially true if you use a fill-in-the-blank document you find online, rather than working with a knowledgeable trust attorney in Atlanta. In order to make your living will as helpful to your loved ones and medical staff as possible, it may be a good idea to be very thorough and to define what you mean by things like “quality of life” and “reasonable chance.”
Many people are moving toward these more comprehensive living wills, although it is certainly difficult to anticipate every situation that can arise. According to the WSJ articles, some people are now foregoing the living will altogether and opting instead to have their estate planning attorney assist them in naming a health care agent with whom you discuss your views and values before leaving the decision-making responsibilities in his or her hands.
If this is something you would like to explore further in your particular situation, or you have further questions about creating a living will here in Atlanta, please feel free to give our Marietta estate planning and elder law firm a call at 770-425-6060 and ask to schedule a complimentary Georgia Family Treasures Planning Session with the mention of this article.
April 16th is National Health Care Decisions Day, which encourages local residents to have open conversations with their loved ones about their most personal wishes for health care, including thoughts on life support, feeding tubes, organ donation, long-term care and what is “qualify of life”.
ATLANTA, GEORGIA (03/30/2012)- April 16th is National Health Care Decisions Day, which encourages local residents to have tough conversations with their loved ones about their most personal wishes for medical care.
These conversations include wishes and preferences about life support, feeding tubes, organ donation and what you consider to be “quality of life” in the event of a long-term incapacity.
According Steve Worrall, an estate planning attorney in Atlanta, Georgia, these conversations may be hard to have, but it’s the only way to make sure your wishes are honored and that your loved one’s stay together in a medical emergency.
“I’ve seen many families torn apart trying to figure out what their loved one ‘would have wanted’ during a medical crisis,” says Worrall. “In some cases, families even spend years battling in court for control, much like Terri Shiavo’s family did,” he adds.
Worrall says strife over health care decisions can be avoided by letting someone know your wishes and clearly documenting them. He says that legal tools such as a Power of Attorney, Health Care Directive and HIPAA forms are easy ways to let doctors and family members know how to manage your care if the unthinkable happens.
“Medical crises can be emotional, and the only way to guarantee your wishes are honored and that your family stays together is to let everyone know exactly what you want and who you trust to make those decisions. It will make life easier for everyone in a true emergency,” says Worrall.
For more information on documenting your personal health care wishes or about National Health Care Decisions Day, please visit Worrall’s website (www.georgiafamilylaw.com) or the National Health Care Decisions Day website (http://www.nhdd.org/).
There are often many questions about who has the authority to approve orders not to resuscitate a person or to approve a “No Code.” The law in Georgia is very specific and there are circumstances when regardless of a person’s wishes, that order cannot be carried out in the person’s current location.
This document will attempt to clarify and simplify some of those points. It is not to be taken as legal advice and it is not information that can be easily applied outside of the State of Georgia since state laws differ.
This is a subject matter that should be discussed with a physician in order to clearly understand the patient’s medical condition and whether or not he or she qualifies as a proper candidate for implementation of a “No Code.”
O.C.G.A. §31-39-1 et. seq.
CPR- measures used to restore or support cardiac or respiratory function in the event of cardiac or respiratory arrest.
Candidate for Non-CPR: a patient who based on a determination to a reasonable degree of medical certainty by an attending physician with the concurrence of another physician:
a) has a medical condition which can reasonably be expected to result in the imminent death of the patient;
b) is in a noncognitive state with no reasonable possibility of regaining cognitive functions; or
c) is a person for whom CPR would be medically futile in that such resuscitate will likely be unsuccessful in restoring cardiac and respiratory function or will only restore cardiac and respiratory function for a brief period of time sot that the patient will likely experience repeated need for CPR over a short period of time so that such resuscitation would be otherwise medically futile.
Other Names for Cardiopulmonary Resuscitation
Orders surrounding the administration of cardiopulmonary resuscitation (CPR) are recognized by a number of names:
· Do Not Resuscitate
· Order Not to Resuscitate
· No Code
NOTE: Under the law, the only people authorized to withhold or withdraw cardiopulmonary resuscitation are physicians, health care professionals, or emergency medical technician.
Every adult is presumed to have the capacity to make a decision regarding CPR and every patient shall be presumed to consent to the administration of CPR unless there is consent or authorization for the issuance of an order not to resuscitate.
Persons authorized to issue an order not to resuscitate:
· attending physician which authorizes a physician, health care professional, or emergency medical technician to withhold or withdraw CPR
· an adult person with decision making capacity (even if they lose capacity in the future)
· Appropriate authorized person: agent under a DPOA-HC; spouse; guardian of person; son or daughter 18 years of age or older; parent; brother or sister 18 years of age or older (in good faith)
· parent for a minor child
· as last resort an attending physician may issue an order not to resuscitate if: he or she has the concurrence of a second physician in writing that the patient is a candidate for nonresuscitation; an ethics committee or similar group which concurs in the opinion of the attending and the concurring physician; and the patient is receiving inpatient or outpatient treatment from or is a resident of a health care facility other than a hospice or a home health agency.
Carrying out a DNR order when the patient is not in a hospital nursing home or licensed hospice is now legal as long as the order is evidenced in writing containing the patient’s name, date of the form, printed name of the attending physician, and signed by the attending physician on a form similar to the one in the law:
“DO NOT RESUSCITATE ORDER
NAME OF PATIENT: ________________________________________________
THIS CERTIFIES THAT AN ORDER NOT TO RESUSCITATE HAS BEEN ENTERED ON THE ABOVE-NAMED PATIENT.
PRINTED OR TYPED NAME OF ATTENDING PHYSICIAN:
ATTENDING PHYSICIAN’S TELEPHONE NUMBER: __________________
The patient must also be wearing an identifying bracelet on either the wrist or the ankle or an identifying necklace. The bracelet or necklace shall be substantially similar to the ID bracelets worn in hospitals and must be on an orange background with the following information provided in boldface type:
“DO NOT RESUSCITATE ORDER
Patient’s name: __________________________________________
Authorized person’s name and telephone number, if applicable:
Patient’s physician’s printed name and telephone number:
Date of order not to resuscitate: _______________________________
Liability for persons carrying out a DNR order:
No authorized person is subject to any criminal or civil liability for carrying out a DNR order in good faith as long as it was carried out in compliance with the standards and procedures set forth in the law.
For assistance with finding a vendor for bracelets or necklaces, contact the Office of Regulatory Services at (404) 657-4076.
SOURCE: Georgia Department of Human Resources Division of Aging Services
With the increasing ability of medical science to sustain our lives, people are living much longer than ever before. Unfortunately, as we grow older and experience poor health, we may find ourselves in a position where decisions need to be made as to how we wish to be treated in a variety of medical situations at the end of our lives. Further, sometimes we find ourselves in a condition where we can no longer express our preferences. Advance health care directives allow us to deal with these situations. Without such directives, your family may find it necessary to obtain court orders to deal with your medical situation.
State laws vary concerning the appropriate documents to cover these situations. All fifty states permit you to express your wishes as to medical treatment in terminal illness or injury situations and to appoint someone to speak for you in the event you cannot speak for yourself. Depending on the state, these documents are known as "living wills," "medical directories," "health care proxies," or "advance health care directives." Some states have a standardized document for this process, while other states leave the language up to individual lawyers and their clients.
A living will is your written expression of how you want to be treated in certain medical conditions. Depending on state law, this document may permit you to express whether or not you wish to be given life-sustaining treatments in the event you are terminally ill or injured, to decide in advance whether you wish to be provided food and water via intravenous devices ("tube feeding"), and to give other medical directions that impact the end of life. "Life-sustaining treatment" means the use of available medical machinery and techniques, such as heart-lung machines, ventilators, and other medical equipment and techniques that will sustain and possibly extend your life, but which will not by themselves cure your condition. In addition to terminal illness or injury situations, most states permit you to express your preferences as to treatment using life-sustaining equipment and/or tube feeding for medical conditions that leave you permanently unconscious and without detectable brain activity.
A living will applies in situations where the decision to use such treatments may prolong your life for a limited period of time and not obtaining such treatment would result in your death. It does not mean that medical professionals would deny you pain medications and other treatments that would relieve pain or otherwise make you more comfortable. Living wills do not determine your medical treatment in situations that do not affect your continued life, such as routine medical treatment and non life-threatening medical conditions. In all states the determination as to whether or not you are in such a medical condition is determined by medical professionals, usually your attending physician and at least one other medical doctor who has examined you and/or reviewed your medical situation. Most states permit you to include other medical directions that you wish your physicians to be aware of regarding the types of treatment you do or do not wish to receive.
Health Care Proxy
A "health care proxy," sometimes called a "health care surrogate" or "durable medical power of attorney," is the appointment of a person to whom you grant authority to make medical decisions in the event you are unable to express your preferences. Most commonly, this situation occurs either because you are unconscious or because your mental state is such that you do not have the legal capacity to make your own decisions. Normally, a single individual is appointed as your health care proxy, though quite commonly one or more alternate persons are designated in the event your first choice proxy is unavailable. As with the living will, medical professionals will make the initial determination as to whether or not you have the capacity to make your own medical treatment decisions. The health care proxy is a durable power of attorney specifically designed to cover medical treatment. As with living wills, depending on your state of residence, it may be a state-determined form or may be drafted individually by your attorney.
Why Have Health Directives?
Regardless of the name your state gives to these documents, their purpose is to allow you to express your preferences concerning medical treatment at the end of your life. By expressing such preferences in a written legal document, you are ensuring that your preferences are made known. Physicians prefer these documents because they provide a written expression from you as to your medical care and designate for the physician the person he or she should consult concerning unanswered medical questions. Rather than the physician having to obtain a consensus answer from your family as to your treatment, the physician knows your preferences and knows who you want to provide decisions when you cannot do so.
These documents provide your expressed wishes, rather than making the family guess your desires. Making your wishes known in advance prevents family members from making such choices at what is likely one of the most stressful times in their lives. Further, providing such information and designating a health care proxy means that the physician knows whose direction is to be followed in the event your family disagrees as to what medical treatment you would want.
Obtaining and Maintaining Living Wills and Health Care Proxies
Your personal attorney can provide you with each of these documents. Generally, these documents require at least two witnesses. It is the policy of some hospitals and other medical institutions not to permit their employees to witness the signing of such documents. In most states there are other restrictions as to who may witness such documents. Generally, the persons who act as witnesses are not permitted to be individuals entitled to any inheritance as a result of your death, either by will or by state law. Often the law does not permit persons to witness such documents if they are related to you by blood or by marriage, or if they are responsible for payment of your medical bills. In any event, the witnesses must be adults as defined by your state law.
While all states recognize these advance health care directives, the law varies as to recognizing a document prepared in another state. It is not necessary to prepare additional documents in case you might vacation in another state. However, if you spend a considerable amount of time living in more than one state, you should consider having advance directives prepared in each of the states in which you spend significant periods of time.
Should you change your mind as to your living will decisions or your choice of health care proxy, you can simply destroy the document you have and create a new one. Once you have a living will, health care proxy, or advance health care directive, you should keep it among your important papers. Make sure a responsible adult, such as the named health care proxy, knows where you keep these documents. If you have a regular physician who keeps your medical records, you should provide a copy of the documents to him or her for your medical records. In the event you are admitted to a hospital you should take these documents with you at the time you are admitted and permit the hospital to place copies into your medical files. It is also a good idea to discuss the decisions you have made in your documents with family members so that they may better know and understand your wishes concerning these matters.
Organ and Tissue Donation
In many states you can include in your advance directive your preference to become an organ or tissue donor at the time of death. State law varies, and you should check with your attorney. Even if your state is one in which your driver’s license contains an organ or tissue donor statement, you need to express this by letting your health care proxy, your family, and your physician know your desire to become a donor. In some states you also need to be registered as an organ and tissue donor.
Communication is the Key
Many people prefer to keep their legal documents private. With end of life issues, however, communicating your wishes is essential. An advance health care directive is the first step in this process. But, you also need to discuss your preferences with others. Take the time to discuss these issues with the person you appoint as your health care proxy. Talk to your physician. Make sure your family knows how you feel about end of life issues. The more these individuals know, the easier it will be for them to fulfill your wishes.
SOURCE: American Bar Association
As of your 18th birthday, you became an adult in the eyes of the law.
Even though your kids may still act like teenagers (or you may feel like one), in the eyes of the government, turning 18 means you need to have legal documents in place in case of an accident.
Every adult should have in place an Advance Health Care Directive and a Financial Durable Power of Attorney. Estate planning is not just for rich people. These legal documents are important for everyone who loves their family.
If you don’t have these legal documents in place and something scary happens, it will make life a whole lot more difficult for the people you love.
An Advance Health Care Directive (also known as a living will) does two things: first, it names the person you want making health care decisions for you if you cannot make them for yourself and second, it lets that person know how you want them to be made.
This is important because if you are in the hospital and cannot communicate, you need someone to make decisions for you and you want them to make those decisions as you would want them made, without question.
If you don’t have this document in place, it could create a huge rift among your family as the people you love fight about what you would have wanted.
The important thing in this document is that the whoever you name is also given authority under the new (within the past three years) Health Insurance Portability and Accountability Act (aka HIPAA).
If your health care agent (the person named in your Advance Health Care Directive) is not designated as your agent under HIPAA, they will not be able to look at your medical records, which makes it mighty hard for them to make health care decisions for you.
By the way, if you have college age kids going off to college, you’ll want to get this in place for your kid. Otherwise, when you call the school nurse to discuss your child’s illness, you may find no one can or will talk with you because they would violate HIPAA if they did.
We get frantic calls in our office at least once or twice each fall from parents looking for legal documents for their college-age kid for just this reason.
The second legal document you absolutely need to have in place as an adult is a Durable Power of Attorney. This document names someone to make financial and legal decisions for you if you can’t make them for yourself.
Beware of the one-page standard durable power of attorney you find on the internet where you just check off a list of applicable powers. I’ve seen family members try to use those to access their loved ones assets and then not be able to because the form was too generic.
It’s important for your kids going off to college to have this in place too because if they are in an accident you are going to need to take over paying the bills and get access to bank accounts and make legal decisions. But, you will have to go through a long and expensive court process if there’s not a signed Durable Power of Attorney in place.
It’s the same for you too. If you are in an accident, and you don’t have a Durable Power of Attorney in place,it will be difficult for your family to deal with things on your behalf.
So, regardless of the amount of money you have in the bank, get your Advance Health Care Directive (or living will) and your Durable Power of Attorney in place at the bare minimum. Oh, and of course, if you have kids under 18 at home, get your comprehensive Kids Protection Plan in place too.
None of this has to do with money. It has to do with making life as easy as possible for the people you love.
SOURCE FOR POST: Family Wealth Matters by Alexis Martin Neely
Do Your College Age Children Have Healthcare Directives? DO YOU?
Georgia Advance Directive for Health Care
I found the article repinted below in the San Jose Mercury News, about an "End of Life" case going on right now in Fresno. Thanks go to fellow Personal Family Lawyer John Erik Fraker of the firm Ainer & Fraker, for alerting me to this case.
As the title indicates, there are definite parallels to the Terry Schiavo case.
The potentially more terrifying part about this case: The family is in agreement that she should be kept alive, but it is the Public Guardian (acting as conservator) who is petitioning the Court to remove life support – WITHOUT any indication that this is what the patient would have wanted.
If that doesn’t get you motivated to fill out an advance directive, nothing will.
A question of life support
FRESNO CASE HAS ECHOES OF SCHIAVO STORY
Article Launched: 07/28/2008 01:32:32 AM PDT
FRESNO – Three years after the fight over Terri Schiavo pulled the nation into the end-of-life debate, the case of a comatose Fresno County woman is reopening old wounds – and could prove more inflammatory.
The family of Janet Rivera, 46, wants to keep her alive in a Fresno hospital. The county, acting as her legal guardian, wants a court to decide whether that’s the right thing to do.
Among the questions her situation has raised: Should a government agency be able to overrule family members and withhold life support when the patient’s wishes are unknown?
The Terri Schindler Schiavo Foundation helped find a lawyer to represent the Rivera family, said Schiavo’s brother, Bobby Schindler.
Rivera’s situation is more alarming than his sister’s, he said. "We had a family dispute," he said. "This is a family in agreement."
Doctors said Schiavo, 41, was in a persistent vegetative state, and her husband, Michael Schiavo, decided to have the feeding tube removed. The Schindlers wanted her kept alive. After a lengthy court fight, the tube was removed in 2005; she died 13 days later.
In Rivera’s case, the county became involved after the hospital contacted the Public Guardian’s Office. According to court records, one of the concerns was that Rivera’s conservator at the time – her husband – was not making decisions related to his wife’s health.
Dr. David Hadden, the county’s coroner, public administrator and guardian, has said the county did not seek to become conservator. He said he decided to seek a judge’s opinion because five doctors have said Rivera’s condition is untreatable and irreversible.
The county removed life support July 11 but had it reinstated Tuesday. Hadden said he restored it because Rivera was surviving longer than expected and he wanted to hear a judge’s opinion. A Fresno County judge on Wednesday granted a temporary order for life support to continue until the case is heard this week.
Rivera has been comatose for two years following a heart attack. It’s unclear what her preferences about life support would be.
"We never really talked about life and death things much," said Rivera’s brother, Michael Dancoff of Berkeley.
Experts say the county is taking a chance by trying to make an end-of-life decision for Rivera.
It’s unusual for a conservator to argue for removing life support without evidence that’s what the patient would want, said David Magnus, director of the Stanford Center for Biomedical Ethics.
While Hadden says financial considerations have played no role in deciding whether to keep her on life support, her family contends Rivera might not be in this situation if she had more money or better health-care coverage. Rivera’s medical bills are being paid by Medi-Cal, the state-federal insurance program for low-income families.