Can anyone help me to distinguish between a living will and a durable power of attorney for health care decisions
Can anyone help me to distinguish between a living will and a durable power of
attorney for health care decisions
It is helpful to distinguish between a living will and a durable power of
attorney for health care decisions, as American law does.
A living will typically is a person's expression of how much life sustaining
treatment the person wants or does not want under certain circumstances. It
is intended to guide health care providers and surrogate decision makers
(typically next of kin) when the person is unable to make decisions for
himself (typically the person is comatose). The living will was intended
both to guide and to give some protection to health care providers and
surrogate decision makers, when discontinuing treatment. 20 years ago
decisions to discontinue treatment were highly suspect and the courts often
presumed them to be wrong (i.e., not what the comatose person would have
wanted).
A living will was only an expression of the person's intent at the time it
was signed, and *not* binding on the health care providers, surrogate
decision makers or the courts. It was one indicator among others and could
be ignored by the surrogate decision makers or the courts.
About 15 years ago state legislatures began authorizing durable powers of
attorney for health care decisions (and, parenthetically, for other
purposes). A power of attorney is simply one person (called the principal)
designating another person (called the agent or attorney-in-fact) to do
certain things in the name of the principal. The principal is bound by the
acts of the attorney-in-fact. The agent is obliged by contract law to do
the acts designated, on the basis (and only on the basis) established by the
principal.
Powers of Attorney have been around for a long time in American law. The
historical problem with powers of attorney, from the health care
perspective, is that they became ineffective if the principal became
"legally incompetent" to make decisions. In the health care context, this
typically occurred when a person became comatose. Thus, just when the agent
was needed to act, the authority to act was suspended.
Hence, *durable* powers of attorney. They operate only when the principal
is legally incompetent.
I am most familiar with durable powers of attorney for health care decisions
in California and Arizona. I believe (but do not know) that most states
have adopted similar legislation.
The features which make durable powers of attorney useful for gays and
lesbians are:
1. The instructions of the principal are binding on the health care
providers and the courts, as well as on the surrogate decision maker.
A doctor who fails to honor the principal's instructions and those
of the surrogate decision maker can be sued for battery. In addition, the
doctor's failure is the basis for professional discipline by the state
medical board.
2. The principal can designate any one as the surrogate decision
maker. Absent this document, the next of kin (based on degree of
relationship) is the legal decision maker. That is why family members have
been able to shove aside long term lovers at death beds.
The designated surrogate decision maker can be the principal's
lover, or anyone else. This is particularly useful when one is estranged
from one's family, and not in a relationship.
The designated surrogate decision maker is the person whom the
doctors *must* keep informed of medical developments, and is the *only*
person authorized to make decisions for the principal during the principal's
incompetency. Indeed, a surrogate decision maker such as a lover can forbid
the doctors from discussing the principal's status with estranged family
members, and can bar estranged family members from the person's hospital room.
3. The durable power of attorney allows the principal to deal with a
wide range of issues associated with illness and death, most notably,
disposition of the principal's remains upon death. Again, absent this
document, the body of the principal goes to the next of kin for burial /
cremation, not to the lover.
Other matters frequently addressed are donation of organs and
authorization of autopsy.
In California the Durable Power of Attorney can follow a specific model
stated in the enabling legislation or can be specially prepared, so long as
it satisfies all of the statutory requirements. The statutory version is
available in stationery stores, and costs about $2. Thus, a durable power
of attorney for health care decisions is within the financial ability of
most everyone.