The Living Will
Guest: Dennis Christensen – Elder Law Attorney
Host: Sally Smith - Author/Resource literature on age-related disease and healthy aging
Sally Smith: Welcome to Age to Age. I’m Sally Smith. Let’s talk. Today, we’re fortunate to have with us, again, Dennis Christensen, elder law attorney. He’s graced us with his presence before, talking about the important legal documents to have, for a parent, or for yourself. We’ve talked about what legal documents need to be in place. We’ve touched on wills, healthcare powers of attorney. And I know, today, we’re interested to hear what he has to say about a critical document: an advanced directive, or living will. This document is referred to as either one of those, is that right, Dennis?
Dennis Christensen: Well, actually, advanced directive is the term used to describe a number of types of documents that deal with healthcare planning. In South Carolina, we have what we call a healthcare power of attorney, and we have a living will. Those are two separate documents. The living will is the document that you sign which indicates that if you ever become terminally ill, or permanently unconscious with no chance of ever getting better, whether or not you want to remain hooked up to machines, or whether you want tube feeding.
With the second document, the healthcare power of attorney, in the event that you become unable to make medical decisions for yourself, you appoint a person to make those medical decisions for you. So, the first thing it does is give someone the authority to make decisions for you if you can’t make them for yourself. The second part of the document allows you to indicate whether or not you want to be kept alive by artificial means, whether you want tube feeding, or whether you want to be an organ donor. The healthcare power of attorney is really more expansive and, really, is used more than a living will, in South Carolina, because most people want to have a certain person make medical decisions for them, and the healthcare power of attorney allows that to happen.
When you have a living will, when the doctors determine; you need two doctors, that you’re terminally ill, or permanently unconscious with no chance of getting any better, whatever instructions you’ve indicated in the document about life support, they actually effectuate without having to get the consent of any family members, or other people.
Sally Smith: How easy is it to get this document?
Dennis Christensen: Well, they’re really pretty easy to get. When you go into a hospital, by federal law, they have to ask you whether you have either of those documents. If you don’t, they have to offer you the chance to sign them there.
Sally Smith: Oh, I didn’t know that.
Dennis Christensen: Anytime you go to a hospital, they have to give you that chance. They, also, do not have to be done by attorneys. It used to be that doctors offices, health clinics, nursing homes would have those documents available if you needed them. So, you don’t need to have a lawyer to sign either of those documents. In terms of them being signed by lawyers, they’re, really, fairly easy to sign. The most important thing is that you make sure that you have the right decision maker to make those decisions if you can’t make them for yourself.
Sally Smith: In my reading for today’s interview, I read about something else. It said that a living will, or advanced directive, is more powerful if it’s coupled with a healthcare proxy. What is that?
Dennis Christensen: The healthcare proxy is, really, a healthcare power of attorney.
Sally Smith: Oh, it’s the same thing.
Dennis Christensen: With a healthcare proxy, you’re naming a person to act as your proxy to make medical decisions for you. Now, in my practice, we usually recommend that people have healthcare powers of attorney, and not the living will. The living will, if you have one, for example, doesn’t allow anyone to make medical decisions for you. So, for example, if you were in a car accident and had an injury to your leg, and you were unconscious, and they had to decide whether or not to amputate your leg, or to do surgery, or do nothing, the living will doesn’t allow anyone to make that medical decision for you. However, if you have a healthcare power of attorney and you’re unable to make a medical decision, you have given someone the authority to do that. So, a healthcare power of attorney has more application and is more useful, so to speak, because there can be a lot of circumstances when it’s not a life or death decision, but someone has to make a medical decision for you. And, if you haven’t named someone to do it, then the state has its own pecking order of who can make medical decisions, so it becomes much more complicated.
After the Terri Schiavo case in Florida, they did a study as to which of the two documents were more effective. Some people have healthcare powers of attorney, and some people have living wills. What they found was that, generally, living wills are not as effective as healthcare powers of attorney, that the wishes of the person weren’t as likely to be followed.
In our practice, we generally use healthcare powers of attorney, and not a living will. And the reason for that; the living will really puts the ultimate decision in the hands of the doctors. When they make the determination that you’re either terminally ill, or permanently unconscious, you’ve instructed them to either discontinue life support, or continue. So, sometimes the family members, really, aren’t in the process. As most people are aware, when you’re in a hospital, even though you may have a family doctor, they’re usually not the treating physician in the hospital. So, it could very well end up that a doctor you don’t know is going to make that ultimate decision. You, also, may not know their philosophy about quality of life.
Sally Smith: Very interesting.
Dennis Christensen: So, with a healthcare power of attorney, you’re choosing someone who has the same values about quality of life as you. And, probably, you’ve talked to them, so they’re going to have a better idea about what you want.
We use the living wills when someone doesn’t have an agent. We’ve had older people that don’t have family anymore. They don’t have someone they feel comfortable with to make the decision, but they know they don’t want to be kept alive by machines. So, in that case, a living will might be the preference because they don’t have an agent.
The importance of both of those documents is that it allows someone to make medical decisions, or direct how they want certain medical decisions to be made, and not have to rely on their kids, who are fighting over what Mom or Dad should have. You’ve chosen who you want, and they get to make the decision.
Sally Smith: One last question on that: as in all these documents, it’s great to have a document, where should it be? Who should have it? Does it need to be posted on the bedside? Does it need to be in your purse, wherever you go? Where should these documents be?
Dennis Christensen: Well, the one place these documents shouldn’t be is in your safety deposit box in a bank. A lot of people put their wills, and powers of attorney, in their safety deposit box. But if you put your healthcare power of attorney or living will in a bank and get sick on a weekend, the bank isn’t going to open up for you.
Sally Smith: Right.
Dennis Christensen: So, it’s very important to keep these original documents somewhere in your house so someone can get to them if there’s an emergency. The lawyer will often keep a copy of these documents. And our experience has been that if a hospital calls us, we can fax them to the hospital. We also suggest that a copy of the document be given to the agent. And, many times, we name more than one agent. Someone may be on vacation, and you need a backup. Also, we strongly suggest that a copy be given to the treating physician.
There’s a new company we’ll be dealing with that actually gives you a card which you can keep in your wallet. And, on that card, if there’s an emergency, you can call that number and have your healthcare power of attorney faxed to the hospital. It also has on it information about medication allergies. So, it’s an information document. It’s a good idea, though, to give copies of these documents to the agents you’ve named, as well as to your doctor.
Sally Smith: Thank you so much, Dennis. That’s really illuminating, and what a great idea. Thank you so much for being with us. And thanks so much to our listeners for joining us today. We welcome, always, your suggestions and comments on our website. This is Sally Smith, Age to Age, saying goodbye and wishing you courage and joy on your journey. We are all connected.
If you enjoy listening to Sally Smith, you can buy her book, The Circle. It’s the story of how she personally responded to her mother’s journey with Alzheimer’s disease. It’s a wonderful gift of hope for anyone with a parent with dementia. Just click on Sally Smith’s name under the Health Professionals tab on the Podcast home page. All profits support research at the Center on Aging. Thanks.