Will The Courts Recognize My Living Will?
Colorado has officially recognized the living will in the Colorado Medical Treatment Decision Act. This Act is codified at Colorado Revised Statute, Sections 15-18-101, et seq. Under the Act, a mentally competent person 18 years or older may execute a declaration that any medical procedures or interventions which serve only to prolong the dying process be withheld or withdrawn if at some future time he or she is comatose and has an incurable or irreversible medical condition which could generally only be prolonged by extraordinary measures.
The living will only operates when a patient has been determined to be in a terminal condition.
What sort of declarations can I make in a living will?
In the living will, you can direct your doctor to continue, discontinue, or to continue for a specified period of time any artificial nourishment.
A living will can direct your doctor to withhold or withdraw artificial nourishment if it is the only procedure being provided. If a doctor determines that this will cause you pain, he or she may override the discontinuance of artificial nourishment, and give you enough nourishment to alleviate pain.
A living will can be general or very specific. The most common statement in a living will is to the effect that:
“If I suffer an incurable, irreversible illness, disease, or condition and my attending physician determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued.”
More specific living wills may include information regarding an individual’s desire for pain relief, antibiotics, hydration, feeding, and the use of life-support equipment including ventilators.
Will Physicians Honor My Living Will?
Attending physicians are legally required either to comply with the terms of a declaration or transfer the care of the patient to another physician who is willing to comply. Failure either to comply or transfer care is considered unprofessional conduct. C.R.S. Sec. 12-36-117(1)(s).
When presented with a declaration, the attending physician is required to have the patient examined by another physician. If both physicians determine that the declarant has a terminal condition, they will certify so in writing and notify the patient’s spouse, children, parent, or attorney in fact under a durable power of attorney, if reasonably possible. If the declaration has not been challenged within 48 hours of the notice, the physician is then required to withdraw or withhold the life-sustaining procedures.
Does A Living Will Apply To All Medical Circumstances?
No. As long as patient is able to make health care decisions, the living will cannot be used. In Colorado, your living will does not go into effect until two doctors agree in writing that you have a terminal condition.
To aid your families and physicians in making medical decisions in those circumstances, you may wish to execute a detailed advanced medical directive which expands on your wishes if particular circumstances arise.
Who Can Complete A Living Will?
Anyone over the age of 18 years who is of sound mind can complete a living will. To be legal, it must be signed by you and two adult witnesses.
Who Can Witness My Living Will?
Two adult witnesses must sign your living will. The following cannot sign or witness a living will: patients in the facility in which you are receiving care, any doctor or any employee of your doctor, any employee of the facility or agency providing your care, your creditors, or people who may inherit your money or property.
Can A Living Will Be Revoked?
You can destroy a living will any time you change your mind. A living will can be revoked by the patient at any time and in any manner, with the patient simply tearing up the living will document, expressing orally to witnesses the desire to revoke the document, or in writing. Health care professionals who witness such revocations will document them in the record.
If you cancel or change your living will, you should tell your family, your doctor, and anyone who has a copy of it that it has been canceled or changed.
What Are The Advantages To Having A Living Will?
- Difficult decisions about future care are made while you are competent, alert, and not sick.
- Your directions allow you to die under circumstances you have chosen.
- A living will removes the burden of decisions having to be made by grieving loved ones when you are dying.
- A living will can reduce medical expenses.
What Are Some Disadvantages To Having A Living Will?
- A living will is effective in a very narrow set of circumstances.
- The decisions you made may be hard for your family and create disharmony.
- A parent, adult child, spouse or agent under a power of attorney can challenge the validity of the living will in court.
What Is A Medical Durable Power Of Attorney?
The medical durable power of attorney permits you to name an agent to make decisions on your behalf if you are unable.
It can be helpful to execute a power of attorney to give a loved one specific authority to make medical decisions. This authority may be included in a general power of attorney or in a separate medical durable power of attorney.
Is a medical durable power of attorney recognized by the courts?
In 1992, Colorado adopted the Patient Autonomy Act. This law specifically authorizes the creation of medical durable powers of attorney. Through this device, you may instruct health care providers to withdraw artificial nutrition and hydration and authorize the application or withdrawal of various medical procedures. The law affirms the right of individuals to establish, in advance of the need for medical treatment, any directives and instructions in the even the person lacks the decisional capacity to provide informed consent to or refusal of medical treatment.
The Colorado Patient Autonomy Act has given greater authority to individuals holding durable powers of attorney concerning medical care. A medical power of attorney can be as specific or as general as you wish. However, you should recognize that an agent under a medical durable power of attorney is not generally subject to court supervision, so this should be considered only if you name an agent you trust so completely that you are comfortable giving life and death decision making powers to that person.
What Kind Of Instructions Can I Include In A Medical Durable Power Of Attorney?
A medical durable power of attorney can be used to give specific instructions to the agent about your quality of life preferences and what factors you wish to be taken into account in making medical decisions, including the power to make an anatomical gift.
It may contain instructions to your agent about specific medical treatments, such as decisions about surgery, diagnostic tests or procedures. It may include a specific course of treatment for a known disease or condition, or a decision regarding nursing home care or other out-of-home placement. You can name an agent without giving specific instructions to that person. You may also leave instructions as to the disposition of your remains
When Does A Medical Durable Power Of Attorney Take Effect?
Advanced directives only take effect when the patient loses the ability to make his or her own health care decisions.
As long as you are able to make decisions, your consent must be obtained for medical decisions. Health care providers cannot legally ignore the patient in favor of one’s agent or written instruction.
Who Can Be Given Medical Durable Power Of Attorney?
You may appoint anyone to be your health care agent so long as the person is at least 18 years old, mentally competent, and willing to serve as your agent. The person named has no legal obligation to serve and is not responsible for the financial costs associated with treatment. Your agent doesn’t need to live in Colorado, but it usually makes things more convenient. You might also consider naming a second person to serve in case the first person cannot.
What Happens If I Name My Spouse As Agent, But We Get Divorced?
If you appoint your spouse as your agent, and later you are divorced, legally separated, or your marriage is annulled, your former spouse is automatically removed as your agent unless expressly stated otherwise in your medical durable power of attorney.
Can I Revoke A Durable Medical Power Of Attorney?
Yes. The patient can revoke a durable power of attorney at any time and in any manner.
Will Doctors Try To Resuscitate Me If I Have Advanced Directives?
While it is true that most people use advanced directives to avoid being kept alive against their wishes when death is near, it is a mistake to assume that the existence of an advanced directive means, “Don’t Treat.”
Advance directives are NOT “do not resuscitate” orders. “Do not resuscitate” orders are written by doctors to indicate that a patient should not be resuscitated. The order may be written to reflect a patient’s or surrogate’s expressed wishes about resuscitation, or because the patient will not benefit from resuscitation.
For someone with a living will or medical durable power of attorney, CPR may be appropriate if they are suffering from an acute life-threatening condition. Patients with advance directives may also want aggressive treatment for potentially reversible conditions.
Will The Courts Respect My Advanced Medical Directives?
The U.S. Congress has also shown support for advance directives by enacting the Patient Self-Determination Act. The Act requires that all hospitals receiving Medicaid or Medicare reimbursement must ascertain whether patients have or wish to have advance directives.
In 1990, the United States Supreme Court heard the case of Cruzan vs. Director. This case involved the desire to discontinue the percutaneous gastronomy feedings of Nancy Cruzan. The U.S. Supreme Court decided in favor of the individual right to refuse treatment, even life-sustaining treatment. The Court refused to hand down a specific decision on medical treatment in the case. When the case was referred back to the Missouri Supreme Court, the court found evidence of a verbal advance directive that was deemed sufficient to support the refusal of medical treatment.
How Do Health Professionals Know If I Have An Advanced Directive?
Many hospitals and clinics will ask the patient or family upon admission about the existence of advanced directives when they are admitted to the hospital. The existence of an advance directive is documented prominently in the medical chart. Also, health professionals should document the content of discussions about the patient’s end-of-life desires or any expression of treatment preferences.
A web-based registry is also available to store an electronic version of your health care directive and provide copies as needed to health care providers anywhere in the country. There is no charge for this service at www.uslivingwillregistry.com Started in 1996, this operation has about 15,000 participants.
What Is A Guardian?
A guardian is a person appointed by a court to assist with personal affairs of an individual who is unable to make his or her own decisions. The law regards a person as being unable to make personal decisions if he or she lacks sufficient understanding or capacity to make or communicate responsible decisions concerning him or herself. This may result from mental illness, mental retardation, physical illness or disability, chronic use of drugs and/or alcohol, or other causes. A person who is subject to a guardianship is called a “ward.”
Other than in emergency situations, it may take several months for the appointment of a guardian.
Any person aged 21 or over, or an appropriate agency which is willing to serve, may be appointed as a guardian. A guardian is not required to live with the ward. A guardian is not responsible for a ward’s behavior. Guardianship can be shared by more than one individual.
The duties of a guardian are to determine where the ward should live, to arrange for necessary care, treatment or other services of the ward, and to see that the basic daily personal needs of the ward are met, including food, clothing, and shelter. A court order may allow a guardian to make medical care and treatment decisions. A guardian may manage financial matters for the benefit of a ward. A court may appoint a limited guardian to provide particular services for a specific length of time.
What Is A Health Care Proxy?
A health care proxy is a substitute decision-maker. Under Colorado law, family members and close friends can select a substitute decision maker (proxy) for you if you do not have an advanced directive or a guardian, and if a doctor or a judge determines that you are unable to make medical decisions.
The proxy is chosen from among a group of “interested persons” including the patient’s spouse, parents, any adult child, sibling, grandchild, or any close friend of the patient. The group of interested persons must try to reach a consensus as to who should make the medical decisions on behalf of the patient. The person chosen as your proxy should be the one who knows your medical wishes best.
The doctor tells the patient that a proxy has been selected, says who the person is, and explains the patient’s right to object to the person selected.
If the group cannot reach consensus or the patient objects to the person selected, a guardianship proceeding must be instituted.
The health care proxy has, in essence, the same rights to request or refuse treatment that the individual would have if capable of making and communicating decisions. A proxy can make decisions about all kinds of personal and medical care, and shall comply with your wishes for medical care, if known. If your wishes are not known, the proxy is to act in your best interest.