Imagine the scene for a moment. You entered the hospital for a routine outpatient procedure, but unexpectedly, something goes terribly wrong. The operating room echoes a multitude of medical noises, with hospital personnel shuffling in scrubs, huddled around to discuss the next move to make, surgical lights illuminating the operating table on which you lay. Your life is in the hands of a unfamiliar but certainly competent medical team. And then, that life and death moment occurs. The attending physician directs a staff member to quickly check with hospital administration to find out if you have on file a living will, a legal document which is your “medical constitution” or list of advanced directives. These advanced medical directives concern pre-considered medical treatments and procedures you consented to be applied or refused in a future situation like this where you suffer an illness, injury or other condition requiring immediate medical attention but at such time, you are not in a competent mental state to make your own medical decisions.

Do you imagine that before she begins operating, the surgeon will conscientiously read that living will -clause by clause- with the same understanding as the attorney who drafted the instrument? It is more likely that the surgeon will presume it contains the types of standard clauses predominantly found in living wills. One such standard clause is a euthanasia related provision which gives the medical practitioner the right to terminate any life-sustaining measures if she determines in her opinion that the “quality of life” of her patient has deteriorated to such an extent as to warrant such measures. If you want to change this result and remove the physician’s power to make that value judgment, one solution might be to have your attorney alter your living will. But the question must be asked- how feasible is it to expect that the attending physician will always scrutinize your living will to check for that unlikelihood? With possibly only moments to spare on your life, it seems improbable.

Another reason why living wills are generally ineffective to protect your interests is because it is simply impossible to foresee every possible crisis or medical situation which could happen to you before it arises.   Similarly it is impossible to predict advances which will be made in the medical sciences, in technologies, treatments and therapies.   Therefore it is unreasonable to expect that you could create a legal document today which would perfectly reflect the medical decisions you would likely authorize in the future based on future conditions unknown to you presently.

Instead of a living will, consider a durable healthcare power of attorney. This is a legal instrument which gives a trusted person the authority to make any and all medical decisions on your behalf when you are unable to make them yourself. It is called ‘durable’ because it lasts for the duration of your incompetency. Without such a document, no one – not even your spouse – has any legal rights or say concerning your medical treatment. As a practical matter, a good physician will always want to consult the patient’s family, especially a spouse, because these people usually have your best interests in mind and because they will typically be able to shed some insight as to your present condition and health, since they live with you. However, as surprising and counterintuitive as it may seem, the doctor is under no legal duty to take their wishes or considerations into account. In the absence of any executed living will or durable power of attorney, the law gives the attending physician the exclusive right to make any and all medical decisions concerning a patient who is unable to make his or her own decisions. The only limitation on the doctor’s authority is that his or her decision must be made “in the best interests of the patient.” The doctor’s subjective judgment as to what that means will almost always defeat any lay person’s legal challenge, because the law treats the doctor as the expert who is qualified to make such judgments. However, medical decisions involve more than medical knowledge and training. Medical decisions involve a host of human considerations such as risks, rewards, alternatives, pain tolerance, anticipated length of the treatment and recovery, expense, convenience, religious and moral concerns, and even embarrassment.

Not understanding the law and taking the proper steps to protect your rights can lead to costly and tragic results. Consider for example what happened in the case of Terri Schaivo, who had no living will or healthcare durable power of attorney. In that case, the doctors sided with Terri’s husband who wanted to terminate Terri’s life by removing the feeding tube which was sustaining her, despite the fact that her parents believed that the husband’s decision was influenced by a desire to inherit what remained in her estate and despite the fact that there was ample testimony that Terri would not have wanted the feeding tube removed because she was a devout Roman Catholic who wished to abide by the Church’s teachings against euthanasia and refusing reasonable life-sustaining measures, such as nutrition and hydration. The result was a costly, protracted legal battle lasting 15 years, a battle which was ultimately lost, notwithstanding an intervention by President George Bush who signed federal legislation in an attempt to keep her alive.

While sometimes, certain sickly or elderly persons elect to make their healthcare power of attorney effective immediately – thereby giving away the power to make their own medical decisions to a trusted person even prior to any onset of mental incompetence, typically most people prefer to use a springing healthcare durable power of attorney, where the agent’s power to make medical decisions does not take effect immediately, but is triggered at the moment they are found to be incompetent.

Consequently, it is important to consider how incompetency is determined. The standard is to require a written declaration from either one or two licensed physicians. The danger is that a physician could refuse to declare incompetency, thereby preventing the agent from being able to exercise their authority when the principal is incompetent and needs them to act. To avoid this possibility, the principal can elect to have incompetency determined not by a written declaration of a licensed physician, but simply by the opinion of their agent. While this is convenient, such an election poses a different danger: your agent could potentially declare you incompetent when you are not, thereby defeating your own wishes. They could even have you committed to an institution, forcing you to have to go to court to challenge their opinion in order to re-establish your competency.   Therefore it is crucial to choose someone you trust completely to give this power. It is also important to choose another person to be your alternate agent, in case your primary agent should predecease you or otherwise be unable, unwilling or incompetent to act as your agent when the time arises.

A final caution: many hospitals provide free forms which are titled healthcare powers of attorney, but in reality these forms are often hybrid documents which combine elements of a durable power of attorney with typical advanced directives associated with a living will, including the standard euthanasia related clauses. These advance directives act as a limitation on your agent’s power to make medical decisions on your behalf. The attending physician, who may disagree with your agent’s medical decisions from time to time can take the legal position that your agent is exceeding the scope of the limited authority granted to them under the power of attorney, by claiming that they are not acting in conformity with the advanced directives.

The solution, and my best recommendation is to abandon the use any advanced directives and to simply give an unlimited durable power of attorney to someone you completely trust to make the same decisions you would make.

Getting an attorney to draw up a healthcare durable power of attorney is prudent and affordable. I can personally draft these instruments for a flat fee of $150. If you are concerned that you are not protected in case of a medical crisis, call The Wright Law Firm at 816.431.6216 for a free consultation.

James Wright is a licensed attorney in Missouri, Kansas and California.