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Law Offices of Ronald W. Rutz
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April 11, 2005: Living Wills

Q: I do not want to end up like Teri Schiavo so I downloaded a Living Will form off the computer for free. Do I need to do anything else?

A: First, Colorado has a standardized form that corresponds to the Colorado statutes. Odds are good that you do not have the proper form, even if it was in the computer listed as suitable for Colorado. But you do not have to pay an attorney for this kind of legal document. Just stop at your local hospital and use the free form that is available. Most hospitals also have the capability of helping you sign it while you are there.

But note that in Colorado, a Living Will only covers shutting off the machines after the minimum statutory threshold has been met. It grants no other legal medical authority.

I suggest signing a comprehensive Durable Medical Power of Attorney. The Durable Power will authorize your agent to make any medical decisions, unlike in the Schiavo case where there was no Power of Attorney in place and as a result, the spouse had to be appointed by the Court. (In fact, you can sign both the Durable Medical Power and Living Will at the hospital.) There are so many more medical decisions that need to make besides shutting off the machinesŃnot turning them on, what medical procedures should be followed, choice of medicines, etc. Signing both hospital forms makes a lot of sense.

Of course, while a patient is legally competent, he or she always retains the power to override his or her medical agent. But once legal capacity is lost, someone is in place whose judgment can be used to make these decisions. The medical agent does not have to be the spouse. But remember only medical decisions can be made, not all the other decisions such as personal, financial, business, etc. For that, another kind of Power of Attorney needs to be signed.

There are other medical forms out there that are also labeled Living Wills but are different in nature. For example, some people have related to me that when a Living Will was requested, a nonresuscitation agreement (CPR) form was given. Yes, this document would prevent the machines from being connected in the first place (Living Wills in Colorado only address shutting off the machines). But these CPR forms make sense for people having suffered in the past these very traumatic and intrusive procedures to bring them back after experiencing terminal medical problems such as heart attacks.

But should not someone who initially suffers these kinds of problems be given a chance at least once? In addition, the medical powers would enable the medical agent to make more timely and flexible decisions than a CPR directive mandates.

This columnist understanding the risks of antagonizing many readers, it is suggested the document labeled Five Wishes also needs to be signed with caution. Five Wishes really is not a Living Will but a narrative limited durable power of attorney.

The problem? Almost none of my clients who have the twelve-page document know all of "their wishes" that they agreed to when signing the document. Other clients had changed their minds on certain points but forgot what was in the documents. Thus, the document expresses certain sentiments that are not always reflective of the signerŐs desires.

There is nothing wrong with giving guidance to an agent but it might be wise to give flexibility to an agent to make those decisions in light of the multitude of factors present at the time when decisions need to be made. Thus, the Five Wishes might better be used for some people as an advisory memorandum for the medical agent as guidance rather than as part of the legal document.

In conclusion, sign the Living Will form if you wish the machines to be shut off under the statutory mandates. But regardless, sign a Durable Medical Power of Authority to empower someone who you pick to act for you when you can no longer decide for yourself.

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