Living Wills

Living Wills give you a voice at a time when you may not be able to physically voice your wishes.

The disability sector has always produced men and women who have left a mark. Despite pain, adversity or physical disabilities, these men and women have moved humanity through their talent, science and genius. The late Neville Cohen, epitomised these values. He brought hope, inculcated self reliance, infused entrepreneurial spirit.

On a personal note, Neville facilitated my entry into the legal profession, after obstacles and impediments based on disability discrimination were used to deny me to do a period of Articles and be trained as a lawyer, he was there to help.

Such was Neville that in his last days he made a request that he be buried in a grave that is close to the pathway, accessible to his disabled comrades.

My topic was inspired by this request of Neville.

The living will is a document in the form of a declaration or advance directive that expresses a person’s desire especially about medical treatment. A patient expresses his/her directives by refusing consent to any medical treatment which will keep him/her alive by often artificial means when he is no longer competent to express his instructions. It becomes operational when a patient is unable to communicate his/her desires and preferences about medical treatment because of terminal illness or permanent unconsciousness.

The first living wills helped people who wanted a natural death unattended by artificial life support and other advanced medical techniques.

As these wills become popular and widely available, they began to include other health care concerns like tube feeding, resuscitation and organ donation.

WHAT CAN A LIVING WILL COVER

It is widely believed that it is meant only to direct health care workers to withhold treatment, however, it may also allow a person to ask for all available treatment options and other medical interventions. It is available for a person to choose some medical options and reject others.

A living will involves complicated medical issues, consultation with a doctor may help clarify different treatment types and assist a patient in making living will decisions. Some people do not complete living wills because they worry doctors could let them die when there is still a chance for recovery.

However, a living will cannot take effect legally unless the patient is medically determined to be in a permanent vegetative state or terminally ill, and therefore unable to communicate medical preferences.

LIVING WILL vs. POWER OF ATTORNEY

In some jurisdiction a power of attorney called durable power of attorney can do precisely the same as the living will. This document gives an attorney-in-fact legal power to make health care decisions for someone who cannot make those decisions himself. A durable power of attorney differs from a living will in that it may direct the attorney-in-fact to carry out the living will’s instructions or it may allow the attorney-in-fact to use his or her judgment. The living will itself also can specify a proxy to help enforce its terms. A durable power of attorney may be used whenever the individual granting the power cannot make his or her own health care decisions; it does not depend on the terminal illness or permanent unconsciousness to become effective.

Without a living will or durable power of attorney, family members may end up arguing over what treatments should or should not be provided. Doctors will only consult family members on health care decisions; if a person prefers that a friend or an unmarried partner participate in his or her health care decisions, a living will and a durable power of attorney enabled that person to have a say.

CHOOSING AN ATTORNEY-IN-FACT

The person chosen as the attorney-in-fact or proxy for health care decisions should be a trusted individual who is comfortable discussing health issues. Because this person may need to argue the patient's case with doctors of family members, or even go to court, an assertive and diplomatic individual may be preferred. The representative should be well aware of the choices made in relevant documents, and should support those instructions. It is useful to enlist the cooperation of friends, relatives, and health care providers by giving them executed copies of the document for their reference, should the need arise.

The issues of the living will are very controversial and complex as seen by the Terri Schiavo case in the USA. We will discuss in the next issue.

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