What is a Living Will?

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In the late 1980’s, people around the United States began asserting their right to self-determination to decide how their medical care should be managed during the last days or weeks of their lives. They invented the term “living will” to describe a document that would describe their intentions and that could be presented to medical providers. Courts and legislatures were slow to rule in favor of living wills. However, in 1993, Congress mandated that every patient admitted to a hospital that accepted federal aid had to be informed of his or her right to have an “advance directive,” so that the medical providers would know the intentions of the patient. The term “living will” is legally an impossible term, because Wills are only effective when a person is deceased. But for many people it is a workable term. The correct term is Advance Directive.

Advanced Directives Gain Popularity

With the increased use of hospice, which is paid for by Medicare, and states passing laws or having courts decide that patients do have the right to determine just how they want their care managed when their diagnosis is terminal, Advanced Directives have increased in use. In LaCrosse, Wisconsin, about 70% of the citizens have advance directives. Generally in the United States, only about 30% of patients who are admitted to hospitals have advance directives. Interestingly enough, while most patients in the United States experience the highest medical costs in their lives during the last years of their life, LaCrosse, Wisconsin reports one of the lowest costs of medical care during the last year of life. This is because the people in LaCrosse talk to each other and to their doctors about how they want to die.

Death is one of only two “facts of life.” Being born is the first fact, and dying is the second fact. Everything else in between is a matter of some decisions that we can control, but generally luck, fate or happenstance. We do not control the circumstances of our birth. And we cannot prevent death ultimately. But we can think about how we want to die and talk about it with our loved ones and medical providers in advance.

Advanced Directives in New Mexico

In New Mexico, our statute that governs the durable power of attorney for health care also provides for signing an advance directive. The statute makes clear that a person can say anything he or she wants to say in the advance directive about medical procedures when death is imminent. A case decided in District Court in December, 2013, ruled that a New Mexico patient who is terminally ill can arrange in advance with her treating physician a procedure that will not only stop treatment but hasten a humane death. Doctors can also sign Do Not Resuscitate orders (DNRs), as a prescription on the patient’s chart directing that when death is imminent and the patient has also agreed, that he or she is not to be resuscitated. DNRs are not the same as Advance Directives.

In our office, we combine the Durable Power of Attorney for Health Care with the Advance Directive. We believe that appointing an agent to help with medical decisions is critical for our clients. The agent can attend medical appointments with the client and engage medical providers in discussions about decisions, along with the client. At such time as the client begins the dying process, the agent can assist providers with decisions about the client’s care, where treatment should be given, if any, and for how long, as well as palliative care.