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The Importance of Medical Advance Directives

7/19/13

Several years ago, the highly-publicized case of Terry Schiavo, the Florida woman who was on a feeding tube for 15 years of litigation after the doctors declared her permanently unconscious, made Americans aware as never before of the need to state their wishes in advance regarding end-of-life medical treatment. All states have forms for this purpose, known generally as "advance directives." The Ohio forms (which are available at the Midwest Care Alliance's web site) are the Living Will and the Health Care Power of Attorney. The Living Will states the declarant's wishes regarding life-sustaining treatment if he or she is terminally ill or permanently unconscious, rather than saddling family members with the difficult decision whether to remove life support. There is a separate election regarding the use of nutrition (feeding tube) and hydration (IVs) if the declarant is permanently unconscious, but not terminally ill (the diagnosis in the Schiavo case). The Health Care Power of Attorney gives one or more individuals (in succession) the authority to make all medical decisions the declarant is unable to make, thus addressing all medical decision-making except end-of-life decisions, which are made by the patient in the Living Will. There is no requirement that the forms be used as is, or even used at all, provided the statutory formalities are followed. Certainly the forms are far from perfect, and it is probably impossible to fully address all possible "what if's," but having such documents, and (just as importantly) discussing one's wishes with loved ones, may avoid protracted litigation such as in the Schiavo case. Comprehensive estate planning should include not only issues involving passing property at death (wills, trusts, property titling and beneficiary designations), but also lifetime financial decisions (addressed in a durable power of attorney) and medical decisions (addressed in advance directives). Each person has different wishes and situations to address, which makes a general form more of a starting point rather than a final document. To discuss what options are available to you for a living will and health care power of attorney, please contact an estate planning attorney at Eastman & Smith.

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