A living will is there 'to protect you'
Are you wondering why you are asked that dreadful question at every hospital, clinic and doctors' office: "Do you have a living will?"
Over the past decade, this issue has become increasingly important in order to determine a patient's wishes for medical treatment during lifetime.
In late 2004 and early 2005, we watched the controversial dispute among members of Terri Schiavo's family as the young woman lay in a facility, unable to convey her wishes to her loved ones.
The media covered the story for weeks and months, while her husband and parents struggled with the decision about whether or not to remove Mrs. Schiavo's feeding tube. Fifteen years earlier, Mrs. Schiavo suffered brain damage after collapsing from heart failure. From that point forward, she received artificial nutrition and hydration.
Her husband believed she would not want to be kept alive in her current mental state. Her parents felt she wanted to live because she never stated otherwise.
Mrs. Schiavo's feeding tube was ultimately removed for the third and final time. For almost two weeks, the battle between her husband and parents continued, going all the way to the United States Supreme Court.
She died at the age of 41.
Back in 1975, a young woman named Karen Quinlan suddenly stopped breathing due to a combination of alcohol and drugs.
After she had been placed on a respirator and received artificial nutrition and hydration, her father asked to remove the respirator. The court would not allow it.
He appealed and was ultimately given authority to remove all forms of life support.
Mr. Quinlan had the respirator removed, but continued to allow artificial nutrition and hydration. Karen Quinlan lived an additional nine and a half years.
One thing these two women had in common was neither of them made their final wishes clear to their families before they suffered such unexpected tragedies.
No one ever expects an accident to happen. Each time a tragedy such as these happens, the people are reminded of the importance of having a living will, in order to make their wishes known in the event they could not make decisions for themselves later.
That is why today, most hospitals request patients, upon admission, state their intentions in writing, regarding end of life decisions.
Hospitals also encourage the execution of such documents in order to relieve the hospital, doctors and staff from any liability concerning end of life treatment and procedures.
When you execute a living will, you are making four designations.
First, you are stating your intentions with regard to life support, including CPR, artificial respiration and artificial nutrition and hydration. This part of the document is not triggered until your condition is deemed terminal or you are permanently unconscious.
A terminal condition is one in which you have an incurable or irreversible medical condition which, without the administration of life support systems, will, in the opinion of your attending physician, result in death within a relatively short time.
Permanently unconscious means you are in a permanent coma or persistent vegetative state which is an irreversible medical condition in which you show no behavioral response to the environment and are unable to make your own decisions.
In addition, it is also important to make sure you state whether you wish to have pain medication to keep you comfortable in your final days.
In the living will, you also appoint your health care representative. This is the person who will be in charge of making decisions on your behalf if you are unable to do so yourself.
It does not need to be the end of your life. You may require a health-care representative for treatment following an accident or routine surgery.
Your health-care representative can find out about your condition, ask questions on your behalf and consent or withhold consent for treatment.
When you appoint your health-care representative, you should make sure you appoint someone you trust and make your wishes known to that person.
The living will also allows you to make an anatomical gift.
If you are in the final stages of life and it is known you wish to donate your organs, this designation would prompt hospital staff to take the proper steps to ensure your organs are preserved and used for the purposes you have intended.
On the same token, if you do not wish to make an anatomical gift, you may indicate that in the living will as well.
The final part of the living will is to notify the probate court who you would prefer to have as your conservator if, at some point, you are unable to take care of your basic needs (food, clothing, shelter and medical care).
The probate court would appoint a conservator to be in charge of your personal needs.
Living wills have become increasingly popular because of the adoption of the Health Insurance Portability and Accountability Act of 1996 in April 2003.
HIPAA provides each patient who is over the age of 18 has a right to individual privacy.
With that in mind, doctors, nurses and staff members cannot and will not give out any information about your condition to anyone, including spouses and parents of an adult child.
This is contrary to what most people expect when a loved one is receiving health care.
Unfortunately, most people do not want to think about end of life decisions, especially at a younger age.
This is why anyone over the age of 18 should at least execute a HIPAA waiver.
This document does not include provisions regarding the withholding or removal of life support or the appointment of a conservator for future incapacity.
Even with a living will, only the person who is appointed the health-care representative can receive information.
On the other hand, the HIPAA waiver simply provides the author of the document allows a specific person or persons to receive information about their medical condition.
In certain situations, a HIPAA waiver may be adapted to allow for the appointment of a health-care representative to make decisions on their behalf, should such measures be necessary.
HIPAA waivers are becoming quite popular for young people because, oftentimes, they are not yet ready to make end of life decisions.
However, it is important to have a living will, even for the young, in the event of a catastrophic illness, like those mentioned above.
A living will can be necessary at any age.
It is often referred to as a "seatbelt" because it is there to protect you, but you hope that you never need it.
Rudolf Kuss and Michelle M. Liguori are partners at the law firm of Kuss & Liguori LLC.