Carolyn Moller Duncan PC
5 Common Misconceptions About Living Wills
The ability to dictate the treatment that we are to receive during end-of-life care is something that has only recently been granted to individuals. Now, though, individuals are able to make these decisions using a living will, known in Colorado as a Declaration as to Medical Treatment. Living wills are a form of advanced directive made by an individual when they are able to make their own decisions that sets forth their preferences for specific treatments they do or do not want at the end of their life if they are not able to make those decisions themselves. Here are five misconceptions about living wills that need clarification.
1) It can be used when I’m merely temporarily incapacitated.
A living will can only be invoked when you have a terminal diagnosis or are in a persistent vegetative state and are incapacitated. Even then, it cannot be invoked until 48 hours after two doctors have agreed in writing that you have a terminal diagnosis or are in a persistent vegetative state and are incapacitated. The 48-hour period is given to allow others to challenge the finding of incapacitation by the two doctors.
2) I can’t make any specific requests.
The Declaration can be as specific as you want it to be. At a minimum, it usually includes instructions with regards to the provision of artificial nourishment or hydration. Other details that can be included are whether you wish to be kept alive using life-support machines such as ventilators, use of antibiotics, and pain relief.
3) I can only specify that artificial hydration and nutrition, pain relief, etc. be withdrawn.
The living will can specify that all life supports, from artificial hydration to nutrition, can be provided until death. It can also state that you wish to have artificial life-support and other interventions. Indeed, artificial nourishment can only be withdrawn per the living will if it is the only service being providing to you. Even then, the doctor can overrule your directive if withdrawing all nutrition will cause pain.
4) No one will honor my directive.
Doctors are required to follow the directive under the rules of professional conduct. If the doctor is unable or unwilling to follow the directive, they are required to transfer care of the patient to another doctor who is willing and able. The courts of Colorado are bound to uphold living wills, but family members can challenge the living will in court.
5) The directive is the same as a medical power of attorney.
A living will simply gives your preferences to the doctors who are treating you. A medical durable power of attorney gives the power to make your health decisions to a person whom you have chosen ahead of time. Of course, this person may be called upon to make decisions about your life and death, so it is imperative that this person be someone who you trust implicitly and is willing to handle these types of decisions. A durable power of attorney can cover a wide range of issues including decisions relating to hydration and feeding, organ donation, and specific treatments. In other words, this power of attorney can be as broad, narrow, or specific as the person creating it wishes it to be. And, as with a living will, the durable power of attorney would not take effect until you are unable to make medical decisions on your own.
If you have questions about living wills or wish to draft one, contact Carolyn Duncan first so she can assist you in determining which advanced directives are appropriate for you and then draft them to your specifications.