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Law Offices of Ronald W. Rutz
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April 6, 2005: Living Wills

Q. Would you review my Will? I do not think that my lawyer did a Living Will for me.

A. First, a Living Will is not a Will, is not part of a Will, and has nothing to do with a Will. A Living Will is a document that in most states directs that the life sustaining machines be turned off under the appropriate provisions of the local state law. Many of the national and some local news reports discussed Living Wills as enforced elsewhere. Thus many of the details that concern you will not be applicable in Colorado.

After the Teri Schiavo case, the term Living Will has been thrown around as the document that everyone should sign, but the question is whether that impression is necessarily correct, at least in Colorado.

A Living Will is one of a number of documents that are often lumped under the category of medical directives. LetÕs take a closer look at some of the more common ones.

Now other attorneys may disagree, but the durable medical power of attorney probably is the most important document to have in place. It will designate the individual who is authorized to make the medical decisions provided for in the document, including if covered whether to connect the machines or disconnect them. The decision maker does not have to be the spouse and it is always wise to have at least one back up in case the primary choice is not available to make the medical decisions. The signer of the Durable Power of Attorney still retains control to make his or her own medical decisions as long as minimum legal capacity is present.

In Colorado, a Living Will is supposed to be enforceable and cannot be ignored by hospitals or overridden by others seeking to impose their views. Some hospitals in the area observe the foregoing. However, at some hospitals I have encountered doctors who refuse to honor a Living Will, especially if one or more relatives object. I have ultimately been able to enforce the Living Will but not without much emotion and rancor.

Besides a Durable Power of Attorney and a Living Will, nonresuscitation documents (such as the Cardiopulmonary Resuscitation Directive or CPR) have been given when a Living Will had been requested. Again, others may disagree but I am concerned about this practice. For me such a document is intended for someone terminally ill or very frail who has had a number of medical moments (such as heart attacks or strokes) and has decided that he or she does not want to go through additional traumatic, intrusive procedures necessary to be brought back again. But is this document for most people who should perhaps be given a chance to be brought back, at least once. So sign nonresuscitation agreements only after understanding the significance of doing so.

A document called Five Wishes is being circulated in our area and is widely labeled as a Living Will. But legally it is better classified as a Limited Durable Medical Power of Attorney with very specific instructions and sentiments.. The document is fairly lengthy (12 pages) covering various areas. But it is a "one size fits all" national document developed in New Jersey and circulated out of Florida. Unfortunately, for my clients who signed these documents, in reviewing what was expressed, almost everyone is surprised at certain expressions of "their" wishes, or had changed their minds but had forgotten what was in the documents. So as structured, the document has its own built in problems. Just remember to only include provisions that currently reflect your wishes and then review often. And be sure you understand how Five Wishes might affect your comprehensive Medical Durable Power of Attorney that hopefully you have in place.

Out of space so I need to wind up the column. Of all of the medical directives out there, a Medical Durable Power of Attorney is the starting document so the judgment of the selected fiduciary can be relied upon to ultimately make decisions based upon the multitude of facts present at that time. Share thoughts and feelings but pick someone whose judgment you respect.

As a footnote, please do not construe this column as minimizing the worth of Living Wills, nonresuscitation agreements, and Five Wishes but use the information as a guide to make your own decisions on what is best for you.

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