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Health
Care Directives (Living Wills) FAQ
The
doctors who work in hospitals and health care facilities are
generally charged with preserving a patient's life through
whatever means available. This may or may not be what you
would like in the way of treatment. Living Wills and health
care directives give you the opportunity to definitively state
your wishes, in advance, and to ensure legal respect for your
wishes should you ever be unable to speak for yourself.
What
is a living will?
A
living will generally sets out your wishes regarding end-of-life
medical treatment but it may not appoint a decision maker
should you become unable to communicate those wishes.
Many people mistakenly believe that living wills or health
care directives are used only to instruct doctors to withhold
life prolonging treatment. Some people use living
wills or health care directives to state their wish
to: receive all available medical treatment, be made
comfortable and free from pain or die a dignified death.
Living wills and health care directives are the legal documents
where you should state these wishes.
For
more information on preparing a living will or health care
directive, please read
the free legal tutorial entitled Personal Health Care
Directives (Living Wills)
which can be found in the
Lean
Law Library
What
is a personal health care directive? Does it do the
same thing as a living will?
A
personal health care directive gives another person (a proxy)
authority to make medical decisions for you if you are unable
to speak for yourself. The document may state
exactly what type of treatment you want to receive or it may
leave those decisions to your proxy. A living will may
simply state a general wish to die a dignified death or to
be made comfortable and free from pain, but may or may not
appoint someone to make medical decisions for you when you
become incapacitated. (Please note that all health care
directives and living wills contained in the LeanLegal site will allow you to appoint someone
to make these decisions for you.)
If
you do not know anyone you trust to name as your health care
proxy, it is still important to complete and finalize a health
care directive which records your wishes. That way, your doctors
will be authorized to give you the medical care you want.
What
happens if I don't have any health care documents?
If
you have not completed a living will or health care directive,
the doctors who treat you will use their own discretion in
deciding what kind of medical care you will receive.
When
a question arises about whether surgery or some other serious
procedure is authorized, doctors may turn for consent to a
close relative, e.g. your spouse, your parents or an adult
child. Friends and unmarried partners (although they
may be most familiar with your wishes for medical treatment)
may not be consulted or may be intentionally left out of the
decision-making process.
Problems
arise when partners and family members disagree about proper
treatment. Such disagreements have the potential for
ending up in court where a judge (who doesn't know you or
your wishes) will decide on your future treatment. Legal
battles are costly, time-consuming and painful to those involved
and can be prevented if you have the foresight to make a living
will or health care directive which expresses your personal
wishes for your health care.
When
does my health care directive take effect?
Your
health care directive becomes effective when three things
happen:
-
you
cannot communicate your own wishes for medical care (orally,
in writing or through gestures) and
-
you
are diagnosed to be close to death from a terminal condition
or to be permanently comatose and
-
medical
personnel attending you are notified of your written directions
for your medical care.
In
most cases, you can ensure that your directive becomes part
of your medical record when you are admitted to a hospital
or other health care facility. However, if you
want to ensure that your wishes will be followed if your need
for care arises unexpectedly or while you are out of your
home province/state or country, it is best to give copies of your
health care documents to several people including your physician,
your health care proxy and a trusted friend.
Who
should I choose as a health care proxy?
The
person you name as your health care proxy should be someone
you trust and someone with whom you feel comfortable discussing
your wishes. Your proxy does not need to agree with your wishes
for medical care, but you should feel comfortable
that he or she will respect your right to get the kind of
medical care you want.
You
can appoint a spouse or partner, a relative or a close friend.
Remember that your proxy may have to fight to assert your
wishes for medical treatment, possibly against the medical
system or your family members, so be sure to choose someone
who is assertive enough to enforce your wishes in the event
of any such conflict.
While
you are not required by law to name someone who lives in the
same province/state as you, it would be advisable since your proxy
may have to spend weeks or months near your bedside, making
sure medical personnel abide by your wishes for your treatment.
You
should not choose your doctor or an employee of a hospital
or nursing home where you are receiving treatment.
What
if I really don't know anyone I trust to supervise my medical
care?
Naming
a health care proxy is an optional part of completing your
health care directive. It is better not to name anyone
than to name someone who is not comfortable with the directions
you leave or who is not likely to assert your wishes.
Medical
personnel are still bound to follow your written instructions
for health care or to find someone who will care for you in
the way you have directed. It is still wise to
legally record your wishes for health care even if you can't
name a representative to supervise your care.
What
types of medical care should I consider when completing my
health care documents?
When
drafting your health care directive, you should be familiar
with the kinds of medical procedures commonly administered
to patients who are terminally ill or permanently comatose.
The most common procedures include:
Can
I state whether I want pain medication or food and water?
The
laws of most provinces and states assume that people want relief from
pain and discomfort and specifically exclude pain-relieving
procedures from definitions of life-prolonging treatments
that may be withheld. Some provinces and states may also exclude
food and water (nutrition and hydration) from their definitions
of life-prolonging treatments. There is some controversy
about whether providing food and water or drugs to make a
person comfortable will also have the effect of prolonging
life. Some people feel so strongly about not having their
lives prolonged if they are comatose or likely to die that
they choose to direct that all food, water and pain relief
be withheld, even if the doctor thinks those procedures are
necessary.
On
the other hand, some people feel concerned about how much
pain or discomfort they may experience during a final illness.
These people are willing to have their lives prolonged rather
than face the possibility that discomfort or pain would go
untreated. Obviously, this is a very personal choice
and you are free to leave the instructions that feel right
for you.
How
can I be sure my health care documents are legal?
There
are a few requirements you must meet to make a valid health
care directive. In most provinces and states, you must be 18 years old.
Some provinces and states allow parents to make health care directives
for their minor children. All provinces and states require that
the person making a health care directive be able to understand
what the document means, what it contains and how it works.
Every
province and state requires that you sign your documents. If you
are physically unable to sign them yourself, you can direct
another person to sign them for you.
You
must sign your documents, or have them signed for you, in
the presence of witnesses or a notary public (sometimes both,
depending on your provincial or state laws) so that at least one other
person can confirm that you were of sound mind and legal
age when you made the documents.
Where
can I get a health care directive? Who can help complete
it?
You
can always use a self-help resource to assist you in preparing
your own health care directive or you can hire a lawyer to
draft one. Your local senior center may be a good source
for help. Many of them have trained health care staff
on hand who will be willing to discuss your options.
The patient representative at a local hospital may also be
a good person to contact for help. If you have a regular
physician, you can discuss your concerns with him or her.
For
more information on preparing a living will or health care
directive, please read
the free legal tutorial entitled Personal Health Care
Directives (Living Wills)
which can be found in the
Lean
Law Library
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