Gay
and Lesbians- Living Will/ Advance Directives
Planning Ahead For Your Health Care:
Compiled by
Kenneth Vercammen
In the absence of a Living Will or
other legal arrangement if you become disabled, your partner generally has no
say regarding medical care or life support. Your partner cannot access your assets. Your partner cannot
receive information on your medical status or medical care. Advance directives
are very personal documents and you should feel free to develop one, which best
suits, your own needs.
All States have declared that competent
adults have the fundamental right in collaboration with their health care
providers, to control decisions about their own health care. States recognize
in their law and public policy, the personal right of the individual patient to
make voluntary, informed choices to accept, to reject or to choose among
alternative courses of medical and surgical treatment. If you have a Living
Will, you can designate your partner as a decision maker.
WHY LIVING
WILLS
Modern advances in science and medicine
have made possible the prolongation of the lives of many seriously ill
individuals, without always offering realistic prospects for improvement or
cure. For some individuals the possibility of extended life is experienced as
meaningful and of benefit. For others,
artificial prolongation of life may seem to provide nothing medically necessary
or beneficial, serving only to extend suffering and prolong the dying process.
States recognize the inherent dignity and value of human life and within this
context recognize the fundamental right of individuals to make health care
decisions to have life-prolonging medical or surgical means or procedures
provided, withheld, or withdrawn.
States recognize the right of competent
adults to plan ahead for health care decisions through the execution of advance
directives, such as Living Wills and durable powers of attorney, and to have
their wishes respected, subject to certain limitations.
PURPOSE OF
LIVING WILLS
In order to assure respect for
patients' previously expressed wishes when the capacity to participate actively
in decision making has been lost or impaired; to facilitate and encourage a
sound decision making process in which patients, health care representatives,
families, physicians, and other health care professionals are active
participants; to properly consider patients' interests both in
self-determination and in well-being; and to provide necessary and appropriate
safeguards concerning the termination of life-sustaining treatment for
incompetent patients as the law and public policy of this State, the
Legislatures have enacted Living Will/ Advance Directives for Health Care Acts.
REQUIREMENTS
OF STATUTE
The advance directive for health care
(Living Will) requires a writing executed in accordance with the requirements
of the state law. It must be either
signed and dated in front of an attorney at law or other person authorized to
administer oaths, or in the presence of two subscribing adult witnesses. If the two adult witnesses are used, they
both must attest that the declarant is of sound mind and not under undue
influence. A designated health care
representative shall not act as a witness to the execution of the advance
directive. Since this is a legal document, it must be executed properly to be
valid under the statute.
HEALTH CARE
REPRESENTATIVE
The declarant must designate one or
more alternative health care representatives. "Health care
representative" means the person designated by you under the Living Will
for the purpose of making health care decisions on your behalf.
WHEN DOES
THE ADVANCE DIRECTIVE BECOME OPERATIVE
An advance directive becomes operative
when (1) it is transmitted to the attending physician or to the health care
institution, and (2) it is determined pursuant to the Act that the patient
lacks capacity to make a particular health care decision.
Treatment decisions pursuant to an
advance directive shall not be made and implemented until there has been a
reasonable opportunity to establish and where appropriate confirm, a reliable
diagnosis for the patient which shall include the attending physician's opinion
concerning the nature, cause, extent, and probable duration of the patient's
incapacity, and shall be made a part of the patient's medical records. For additional information or to have a
"Living Will" prepared, see your attorney. In addition, be certain
your Last Will and testament is up to date.
As Americans, we take it for granted
that we are entitled to make decisions about our own health care. Most of the time we make these decisions
after talking with our own physician about the advantages and disadvantages of
various treatment options. The right of a competent individual to accept or
refuse medical treatment is a fundamental right now fully protected by law.
But what happens if serious illness,
injury or permanent loss of mental capacity makes us incapable of talking to a
doctor and deciding what medical treatments we do or do not want? These situations pose difficult questions to
all of us as patients, family members, friends and health care
professionals. Who makes these decisions
if we can't make them for ourselves? If we can't make our preferences known how
can we make sure that our wishes will be respected? If disagreements arise among those caring for
us about different treatment alternatives how will they be resolved? Is there a
way to alleviate the burdens shouldered by family members and loved ones when
critical medical decisions must be made?
Living Will:
By using documents known as advance
directives for health care, you can answer some of these questions and give
yourself the security of knowing that you can continue to have a say in your
own treatment. A properly prepared Living Will permits you to plan ahead so you
can both make your wishes known, and select someone who will see to it that
your wishes are followed.
After all, if you are seriously ill or
injured and can't make decisions for yourself someone will have to decide about
your medical care. Doesn't it make sense to
• Have your
partner or another person you trust make decisions for you,
• Provide
instructions about the treatment you do and do not want, or
• Both
appoint a person to make decisions and provide them with instructions.
A Few
Definitions
Throughout this booklet there are four
phrases. Each of these phrases has a special meaning when it comes to allowing
you to make decisions about your future health care.
Advance directive- If you want your
wishes to guide those responsible for your care you have to plan for what you
want in advance. Generally such planning is more likely to be effective if it's
done in writing. So, by an "advance directive" we mean any written
directions you prepare in advance to say what kind of medical care you want in
the event you become unable to make decisions for yourself.
1. Proxy
directives - One way to have a say in your future medical care is to designate
a person (a proxy) you trust and give that person the legal authority to decide
for you if you are unable to make decisions for yourself. Your chosen proxy
(known as a health care representative) serves as your substitute,
"standing in" for you in discussions with your physician and others
responsible for your care. So, by a proxy directive we mean written directions
that name a "proxy" to act for you. Another term some people use for
a proxy directive is a "durable power of attorney for health care.”
2.
Instruction directives - Another way to have a say in your future medical care
is to provide those responsible for your care with a statement of your medical
treatment preferences. By "instruction directive" we mean written
directions that spell out in advance what medical treatments you wish to accept
or refuse and the circumstances in which you want your wishes implemented. These instructions then serve as a guide to
those responsible for your care. Another term some people use for an
instruction directive is a "living will.”
3. Combined
directives - A third way combines features of both the proxy and the
instruction directive. You may prefer to give both written instructions, and to
designate a health care representative or proxy to see that your instructions
are carried out.
Questions
and Answers
1. Why should I consider writing an advance
directive/ living will?
Serious injury, illness or mental
incapacity may make it impossible for you to make health care decisions for
yourself. In these situations, those responsible for your care will have to
make decisions for you. Advance directives are legal documents, which provide
information about your treatment preferences to those caring for you, helping
to insure that your wishes are respected even when you can't make decisions
yourself. A clearly written and legally prepared directive helps prevent disagreements
among those close to you and alleviates some of the burdens of decision making
which are often experienced by your partner, family members, friends and health
care providers.
2. When does my advance directive take effect?
Your directive takes effect when you no
longer have the ability to make decisions about your health care. This judgment
is normally made by your attending physician, and any additional physicians who
may be required by law to examine you. If there is any doubt about your ability
to make such decisions, your doctor will consult with another doctor with
training and experience in this area Together they will decide if you are
unable to make your own health care decisions.
3. What happens if I regain the ability to make
my own decisions?
If you regain your ability to make
decisions, then you resume making your own decisions directly. Your directive
is in effect only as long as you are unable to make your own decisions.
4. Are there particular treatments I should
specifically mention in my directive?
It is a good idea to indicate your
specific preferences concerning two specific kinds of life sustaining measures:
1.
Artificially provided fluids and nutrition; and
2.
Cardiopulmonary resuscitation.
Stating your preferences clearly
concerning these two treatments will be of considerable help in avoiding
uncertainty, disagreements or confusion about your wishes. The enclosed forms provide a space for you to
state specific directions concerning your wishes with respect to these two
forms of treatment.
Fluids and
Nutrition. I request that artificially provided fluids and nutrition, such as
by feeding tube or intravenous infusion (initial one)
1. ______
shall be withheld or withdrawn as "Life Sustaining Treatment."
2. ______
shall be provided to the extent medically appropriate even if other "Life
Sustaining Treatment" is withheld or withdrawn.
Directive as
to Medical Treatment. I request that "Life Sustaining Treatment" be
withheld or withdrawn from me in each of the following circumstances: (Initial
all that apply)
1. ______ If the "life sustaining
treatment" is experimental and not a proven therapy, or is likely to be
ineffective or futile in prolonging my life, or is likely to merely prolong an
imminent dying process;
2. ______ If I am permanently unconscious (total
and irreversible loss of consciousness and capacity for interaction with the
environment);
3. ______ If
I am in a terminal condition (terminal stage of an irreversibly fatal illness,
disease, or condition); or
4. ______ If I have a serious irreversible
illness or condition, and the likely risks and burdens associated with the
medical intervention to be withheld or withdrawn outweigh the likely benefits
to me from such intervention.
5. ______ None of the above. I direct that all
medically appropriate measures be provided to sustain my life, regardless of my
physical or mental condition.
5. What is the advantage of having a health care
representative, isn't it enough to have an instruction directive?
Your doctor and other health care
professionals are legally obligated to consider your expressed wishes as stated
in your instruction directive or "living will.” However, instances may
occur in which medical circumstances arise or treatments are proposed that you
may not have thought about when you wrote your directive. If this happens your
health care representative has the authority to participate in discussions with
your health care providers and to make treatment decisions for you in
accordance with what he or she knows of your wishes. Your health care
representative will also be able to make decisions as your medical condition
changes, in accordance with your wishes and best interests.
6. If I decide to appoint a health care
representative, who should I trust with this task?
The person you choose to be your health
care representative has the legal right to accept or refuse medical treatment
(including life-sustaining measures) on your behalf and to assure that your
wishes concerning your medical treatment are carried out. You should choose
your partner or another person who knows you well, and who is familiar with
your feelings about different types of medical treatment and the conditions
under which you would choose to accept or refuse either a specific treatment or
all treatment.
A health care representative must
understand that his or her responsibility is to implement your wishes even if
your representative or others might disagree with them. So it is important to
select someone in whose judgment you have confidence. People that you might
consider asking to be your health care representative include:
• your partner, a member of your family or a
very close friend.
7. Should I discuss my wishes with my health
care representative and others?
Absolutely! Your health care
representative is the person who speaks for you when you can't speak for
yourself. It is very important that he or she has a clear sense of your
feelings, attitudes and health care preferences. You should also discuss your
wishes with your physician, family members and others who will be involved in
caring for you.
8. Does my health care representative have the
authority to make all health care decisions for me?
It is up to you to say what your health
care representative can and cannot decide. You may wish to give him or her
broad authority to make all treatment decisions including decisions to forego
life-sustaining measures. On the other hand, you may wish to restrict the
authority to specific treatments or circumstances. Your representative has to
respect these limitations.
9. Is my doctor obligated to talk to my health
care representative?
Yes. Your health care representative
has the legal authority to make medical decisions on your behalf, in
consultation with your doctor. Your doctor is legally obligated to consult with
your chosen representative and to respect his or her decision as if it were
your decision. In the absence of a Living Will or other written authorization
The Federal Health Information Privacy and Protection Act (HIPAA) prevents a
physician from discussing confidential medical information with your partner.
10. Is my health care representative the only
person who can speak for me, or can other friends or family members participate
in making treatment decisions?
It is generally a good idea for your
health care representative to consult with family members or others in making
decisions, and if you wish you can direct that he or she do so. It should be
understood by everyone, however, that your health care representative is the
only person with the legal authority to make decisions about your health care
even if others disagree.
11. Can I request all measures be taken to
sustain my life?
Yes. You should make this choice clear
in your advance directive. Remember, a directive can be used to request medical
treatments as well as to refuse unwanted ones.
12. Does my
doctor have to carry out my wishes as stated in my instruction directive?
If your treatment preferences are clear
your doctor is legally obligated to implement your wishes. unless doing this
would violate his or her conscience or accepted medical practice. If your
doctor is unwilling to honor your wishes he or she must assist in transferring
you to the care of another doctor.
13. Can I make changes in my directive?
Yes. An advance directive can be
updated or modified in whole or in part, at any time, by a legally competent
individual. You should update your directive whenever you feel it no longer
accurately reflects your wishes. It is a good idea to review your directive on
a regular basis, perhaps every 5 years. Each time you review the directive,
indicate the date on the form itself and have someone witness the changes you
make. If you make a lot of changes, you may want to write a new directive.
Remember to notify all those important to you of any changes you make.
14. Can I revoke my directive at any time?
Yes. You can revoke your directive at
any time, regardless of your physical or mental condition. This can be done in
writing, orally, or by any action, which indicates that you no longer want the
directive to be in effect.
15. Who should have copies of my advance
directive?
A copy should be given to the person that
you have named as your health care representative, as well as to your family,
your doctor, and others who are important to you. If you enter a hospital,
nursing home, or hospice, a copy of your advance directive should be provided
so that it can be made part of your medical records. The back cover of this
brochure contains a wallet size card you can complete and carry with you to
tell others that you have an advance directive.
16. Can I use my advance directive to make an
organ donation upon my death?
Yes. You may state your wishes
regarding organ donation. Also you may want to place an organ donor card in
your wallet to alert medical personnel.
Any card will do. If you decide to make a gift of your organs upon your
death please complete the card and carry it with you at all times. For further
information regarding organ donation you should contact either an organ
procurement agency or your local hospital.
3. Terms You
Should Understand
1.
Artificially provided fluids and nutrition:
The provision of food and water to
seriously ill patients who are unable or unwilling to eat. Depending on the
method used, such as insertion of a feeding tube or an intravenous line, and
the condition of the patient, techniques may involve minor surgery, continuous
supervision by medical (and sometimes surgical) personnel, risk of injury or
infection, and side effects.
2.
Cardiopulmonary Resuscitation (CPR):
A treatment administered by health care
professionals when a person's heartbeat and breathing stops. CPR may restore
functioning if administered properly and in a timely fashion and may include
the use of mechanical devices and/or drugs.
3.
Life-sustaining measures:
Any medical procedure, device,
artificially provided fluids and nutrition, drugs, surgery, or therapy that
uses mechanical or other artificial means to sustain, restore or supplant a
vital bodily function. thereby prolonging the life of a patient.
4. Decision
making capacity:
A patient's ability to understand the
benefits and risks of a proposed medical treatment and its alternatives and to
reach an informed decision.
5. Health
care representative or health care proxy:
In the event an individual loses decision-making
capacity, a health care representative or proxy is a person who has been
legally designated to make decisions on his or her behalf. A health care
representative is appointed through the execution of a proxy directive (a
durable power of attorney for health care).
6. Terminal
condition :
The terminal stage of an irreversibly
fatal illness, disease, or condition. While determination of a specific
"life expectancy" is not required for a diagnosis of a "terminal
condition a prognosis of a life expectancy of one year or less, with or without
the provision of life-sustaining treatment, is generally considered terminal.
7. Permanent
unconsciousness:
A medical condition defined as total
and irreversible loss of consciousness. The term "permanently
unconscious" includes the conditions persistent vegetative state and
irreversible coma Patients in this condition cannot interact with their
surroundings or others in any way and do not experience pleasure or pain.
8.
Persistent vegetative state:
A condition of permanent
unconsciousness in which the patient loses all capacity for interaction with
their environment or other people. It is usually caused by an injury to the
brain. It is normally not regarded as a terminal condition and with the aid of
medical care and artificial fluids and nutrition patients can survive for many years.
9. Incurable
and irreversible chronic diseases:
Disabling diseases such as Alzheimer's
disease, organic brain syndrome or other diseases, which get progressively
worse over time, eventually resulting in death. Depending on the disease, the
patient may also experience partial or complete loss of physical and mental
abilities. Because the rate at which these diseases advance may be slow, such
diseases are not considered terminal in their early stages.
10. Whole
brain death:
Death due to total and irreversible
loss of all functions of the entire brain, including the brain stem. The
criteria of whole brain death must be used to accurately determine death in
individuals who have suffered massive or total brain damage but whose heart and
lungs are kept functioning by machines. Brain dead individuals are not
vegetative or in a coma. but are, in fact, dead.
11.
Attending physician :
The doctor directly responsible for
your medical treatment. He or she may or may not be your regular family
physician. Depending on your health care needs the attending physician may
consult with others in order to diagnose and treat your medical condition, but
he or she remains directly responsible for your care.
About
Kenneth Vercammen
Kenneth Vercammen is a Litigation
Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State
Bar Association on personal injury, criminal / municipal court law and drunk
driving. He has published 125 articles
in national and New Jersey publications on municipal court and litigation
topics. He has served as a Special
Acting Prosecutor in seven different cities and towns in New Jersey and also
successfully defended hundreds of individuals facing Municipal Court and
Criminal Court charges.
In his private practice, he has devoted
a substantial portion of his professional time to the preparation and trial of
litigated matters. He has appeared in
Courts throughout New Jersey several times each week on many personal injury
matters, Municipal Court trials, probate hearings and contested administrative
law hearings.
Since 1985, his primary concentration
has been on litigation matters. Mr.
Vercammen gained other legal experiences as the Confidential Law Clerk to the
Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA
District Attorney Office handling Probable Cause Hearings, Middlesex County
Probation Dept as a Probation Officer, and an Executive Assistant to Scranton
District Magistrate, Thomas Hart, in Scranton, PA.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT
LAW
2053
Woodbridge Ave.
Edison, NJ
08817
(Phone)
732-572-0500
(Fax) 732-572-0030
website:
www.njlaws.com
