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Law Offices of Ronald W. Rutz
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November 29, 2005: Living Wills

Q: I do not want to put my family through the Teri Schiavo turmoil. What is the best way to get a Living Will?

A: The popular press focused upon the fact that Teri Schiavo did not have a Living Will. But the lack of a Durable Medical Power of Attorney was the bigger, more fundamental problem.

Colorado is one of forty-seven states that provide for a statutory Living Will, officially called a Declaration As To Medical Or Surgical Treatment. This document directs that life sustaining procedures will be discontinued if ColoradoÕs statutory criterion is met. (Each state has its own threshold.)

In general Colorado provides that the attending physician and another physician certify in writing that in their judgment an incurable or irreversible terminal condition caused by injury, disease, or illness has existed for at least seven days and during that time has rendered a person unconscious, comatose, or otherwise incompetent so as to be unable to make or communicate responsible decisions. Thus in general this is the test used in Colorado to determine if a signed Living Will is implemented.

Given these factors people sign a Living Will who want to know that "the machines" will be shut off, or who just want to take this difficult decision away from someone who is emotionally not prepared to make such a decision. But others do not sign the Colorado statutory form because they are bothered by the wording, or do want someone to take one last look before the procedures are discontinued.

ColoradoÕs Living Will form can be picked up at the hospital (Aspen Club) or at many doctorsÕ offices, so it is not necessary to pay an attorney to prepare one. But do not just download from the computer a document labeled a Colorado Living Will. I have found that many of the computer formats do not conform to Colorado law.

The key document needed to avoid a Teri Schiavo-like situation is a comprehensive Durable Medical Power of Attorney. It should empower an agent to make any medical decision, besides "shutting off" the machines, that needs to be made and can also be used if the maker becomes incapacitated (durable).

The medical power can have any number of backup agents, in case an agent is not available or declines to act. My advice is to have only one agent named to act at a time, not two or more. I would also suggest that the original document be kept and only a copy shared with the hospital or a doctor. Just as with a Living Will, the Durable Medical Power of Attorney can be picked up for free at the same medical locations previously mentioned for a Living Will and avoid downloading forms for the same reasons as those mentioned with regard to the Living Will.

There are documents available that try to list various medical choices and directions that the maker wishes to express to his or her agent. Often called Living Wills, I consider them to be restricted Durable Medical Powers of Attorney. Yes, it is possible to limit medical discretionary power but too often the printed forms cover decisions that the maker either did not read or understand, or the signer later may have changed his or her mind but didnÕt change the power. My own bias is to rely upon the judgment of the agent. But in that case, in addition to the medical powers, provide the agent with thoughts and feelings in key areas. After all, the agent should be picked for his or her judgment and as someone who would accommodate the makerÕs wishes.

And most importantly, husbands and wives need a signed comprehensive Durable Medical Power of Attorney to insure that the spouse is recognized as having the authority not only to make decisions but to be permitted to be in the loop to receive medical information.

Thus executing a Living Will is nice to do, but remember that the comprehensive Durable Medical Power of Attorney is the bedrock document and needs to be in place regardless of what else may be present. So this holiday season give your love ones a very special but probably unappreciated gift. Sign a comprehensive Durable Medical Power of Attorney.

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