The Realities of Infirmities and Aging - Are Your Final Wishes And Affairs In Order?

For many years, before my retirement, I practiced law in New York City and Florida, focusing on trust and estate work and estate planning among other areas. The uproar and political abuse of the families in the Terri Shiavo case in Florida that extended beyond the local courts to Congress and a number of attempted interventions by family members and political opportunists could have been avoided had Mrs. Shiavo executed documents to state unequivocally her wishes in the event of total and irreversible incapacity. In lieu of such explicit statements of intent, the Courts were left with deciding the patient's wishes, a matter of conflicting testimony.

Statistics indicate that a person is likely to become seriously disabled or incapacitated for some period of time at least once during his lifetime. Serious health care decisions are difficult to make. While one is in good health is the best time to decide what kind of health care you would want if you were unable to make your own health care decisions. Unfortunately, when you are seriously ill, you may not be physically or emotionally able to fully participate in these decisions. For this reason, considering and discussing such decisions in advance is not only wise, it is prudent. You can make the situation less difficult for you, your family and your friends, should the need arise, by placing your wishes in writing in advance.
There are a number of written declarations expressing one's wishes as to the degree of medical care to be provided and, in the event he or she cannot make those wishes known or cannot make clear the timing, naming a person to make the decision.

A Living Will

A "living will" bears no relation to the conventional will or living (inter vivos) trust used to leave property at death. It is a document that lets a person state what type of medical treatment he or she does or does not wish to receive if illness or injuries prevent the patient to make clear the treatment which is desired. (Among other things, one may use it to be sure doctors do -- or do not -- "pull the plug.") The document may have a different name in a particular state (it's often called a "declaration" or an "Advanced Care Directive"), but it is the place where specific wishes about types of medical care are stated.

There are a number of possible topics or areas that may be included in the Living Will. As a personal matter, the most important directive in my Living Will is sufficient Palliative Care (Pain Relief)

If one wants death to occur naturally - without life-prolonging intervention -it does not mean refusing treatment to alleviate pain or even discomfort. This type of care, sometimes known as "comfort care" is now more commonly called "palliative care."

Rather than focusing on a cure or prolonging life, palliative care emphasizes quality of life and dignity by helping a patient remain comfortable and free from pain until life ends naturally. Palliative care may be administered at home, in a hospice facility, or at a hospital.

Another aspect of the Living Will, one that played a major role in the Shiavo case, is the issue of nourishment. There the patient was "brain dead", had no cognitive functions; she had been kept "alive" for years by providing food and water. If you are close to death from a serious illness or permanently comatose, you may not be able to survive without the administration of food and water. Unless you indicate that treatment should be withheld, doctors will use intravenous (IV) feeding or tubes to provide you with a mix of nutrients and fluids. IV feeding, where fluids are introduced through a vein in an arm or a leg, is a short-term procedure. Tube feeding, however, can be carried on indefinitely.

Permanently unconscious patients can sometimes live for years with artificial feeding and hydration without regaining consciousness. If food and water are removed, death will occur in a relatively short time due to dehydration, rather than starvation. Such a course of action generally includes a plan of medication to keep the patient comfortable.

When you make your health care documents, you can choose whether you want artificially administered food and water withheld or provided. An important consideration for many people, including me, is the avoidance of unnecessary expenses to the family and the emotional turmoil when a person, in a permanent vegetative state has "life" prolonged indefinitely.

The Living Will may also provide for other personal wishes, including the use of extraordinary means to preserve life, perhaps without consideration of the quality of that life. These issues should be discussed with a family physician so that everyone is clear as to wishes and intent.

Durable Power of Attorney

What if one is unconscious and mentally or physically unable to express wishes to the medical professionals? A "regular" power of attorney appoints another to make decisions, usually for a finite period of time and for a specific task, as completing a real estate transaction. Such a power of attorney will terminate in the event of the incapacity of the person executing it. On the other hand, a "durable" power will be operative in the event of incapacity until revocation or death. The person named under a Durable Power of Attorney has different names in the various states. In Florida, for example, the holder of the Power is called a Surrogate; other states have different terminology but the powers are relatively uniform. Under the laws of a few states, and for purposes that are often limited, the durable power of attorney may grant authority after the death of the executing party. For example, § 765.10(8), of Florida Statutes, dealing with anatomical gifts post mortem.

Until such time as one is unable to make decisions, the patient is totally in charge. The Living Will and Power of Attorney take effect if the doctor determines that the patient lacks the ability -- often called the "capacity" -- to make his or her own health care decisions. Lacking capacity usually means that the patient can't understand the nature and consequences of the health care choices that are available or is unable to communicate personal wishes for care, either orally, in writing, or through gestures.

Practically speaking, this means that if one is so ill or injured that health care wishes cannot be communicated in any way, the documents will spring immediately into effect. If, however, there is some question about the ability to understand treatment choices and communicate clearly, the doctor (with the input of the health care agent or close relatives) will decide whether it is time for the health care documents to become operative.

The Durable Power of Attorney may contain financial or other powers in the event of a prolonged period of incapacity. These additional terms should be discussed with an attorney.

Choosing a person to act on one's behalf

Choose a person who lives nearby, is assertive and close enough that there is confidence that wishes will be carried out. Each state may have limitations on the choice and, as in so many facets of life, nothing can substitute for the advice of a competent attorney. In almost all cases, your agent should not be your doctor or an employee of a hospital or nursing home where you receive treatment. In fact, the laws in many states prevent you from naming such a person to make decisions for you.

A person has ultimate control of medical procedures to be utilized during the final stages of his and her life. The purpose of a Living Will or other Advanced Directives is to ensure that control is effective.

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