‘Living wills’ aim to give people the right to control medical care

ORIGINALLY WRITTEN JILL BREMYER-ARCHER
A “living will” is a document that an adult can use to direct that, if terminally ill and close to death, he or she shall not be given medical treatment that “would serve only to artificially prolong the dying process.”

After the enormous publicity last year about the Terri Schiavo case, law offices received a spate of requests for information about living wills.

(As it happens, if Ms. Schiavo had possessed a living will, this would likely have had no effect upon her case. This is because, though Ms Schiavo was unable to care for herself and suffered from extremely serious brain damage, she was not terminally ill.)

Living wills, also referred to as “advance directives” or simply “declarations,” are authorized by the Kansas Natural Death Act ( K.S.A. 65-28,101 and following).

Passed in 1979, the law states: “The legislature finds that adult persons have the fundamental right to control the decisions relating to the rendering of their own medical care, including the decision to have life-sustaining procedures withheld or withdrawn in instances of a terminal condition.”

(As is discussed below, the law in fact is much narrower than this statement of purpose could suggest.)

Making a living will can help patients avoid futile procedures that would unnecessarily prolong their suffering.

Unfortunately, the dying patient may be unable to communicate his or her desire to be allowed to die naturally. It is thus important that a living will be executed while a person is still competent.

The person who makes the living will is sometimes called the “declarant.”

Any person who is at least 18 years of age and is legally competent may make a living will. The law sets out a basic living-will form document that should-with any suitable modifications-serve as the basis for any declaration.

To be valid, the living will needs to be signed by one or more witnesses. This requirement can be satisfied in one of two ways.

First, the declaration may simply be acknowledged before a notary public.

The second way requires the document to be witnessed by two adults who are not related to the declarant by blood or marriage, who are not entitled by law or will to any portion of the declarant’s estate, and who are not directly financially responsible for the declarant’s medical care.

(Anyone who signed the living will on the instructions of the declarant-as could happen if the declarant was too weak to sign but could still talk-is also disqualified to sign as a witness.)

Though it can be made at any time, a living will only goes into effect when the declarant has been diagnosed as suffering from a terminal disease, as certified in writing by two physicians who have examined the patient. One of them must be the patient’s attending physician.

(This time-consuming procedure is one reason living wills generally will have no practical effect during treatment for a medical emergency.)

What’s more, the terminal disease must be so far advanced that further medical treatment “would serve only to artificially prolong the dying process.”

Under the law, the declarant may put in “other specific directions.” These presumably could “fine tune” the living will by providing, for example, that some types of end-of-life care should be given, but not others.

No directions in the document, however, would allow a living will to take effect before the patient’s life was close to its natural end.

It is the responsibility of the declarant to notify his or her attending physician of the existence of the living will. The attending physician then must put a copy of the declaration into the declarant’s medical records.

It is presumed that a living will document that satisfies the formalities is valid. This means that, when a living will on its face appears valid and the treating physician has no good reason to suspect it is invalid, the living will must be honored.

When a valid living will exists and the patient’s medical condition calls the living will into effect, the declarant’s treating physician must do one of two things: (a) comply with the declaration, or b) transfer the patient to another physician.

The physician’s failure to do one or the other is considered “unprofessional conduct” for which the physician could be professionally disciplined.

Physicians and other health-care providers who carry out the terms of a living will by withholding or withdrawing of life-prolonging medical procedures act lawfully; that is, they are not guilty of any crime or professional misconduct, and are not liable for money damages to the patient or the patient’s relatives or estate.

As with a true will, a “living will” can be revoked by the declarant in various ways; some of these resemble the ways true wills can be revoked, such as the deliberate tearing up or burning of the document (K.S.A. 65-28, 104).

Further, if the declarant is competent, he or she always has the right to direct medical care providers to disregard the living will.

By Kansas law, a declarant’s directive that life-sustaining procedures be withheld or withdrawn does not constitute suicide, and honoring it does not constitute the crime of assisted suicide.

(Some religious groups, however, may find living wills objectionable; this may depend partly on what the living will says.)

The law also has provisions to allow people to make living wills without thereby endangering their life-insurance coverage.

Since it is not medical treatment that only serves to artificially prolong the process of dying, “comfort care” may be given even if a living will is in effect. The giving of food and water does not constitute medical treatment at all.

Signing a living will, therefore, does not direct or authorize that food, water, or comfort care be withheld. People should thus be confident that signing a living will is not going to cause them to be denied food or water.

Other legal documents, such as a “Durable Powers of Attorney for Healthcare Decisions” and “Do Not Resuscitate Declarations” should also be considered if you want to have control over your own end-of-life.

These documents will be discussed in future articles.

Jill Bremyer-Archer is a private attorney practicing in the areas of elder law, real estate, probate and adoption with Bremyer and Wise, L.L.C., in Hillsboro and McPherson.

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