Part 2: Rocket Lawyer Documents

Living Will

Because each heath care directive is affected by individual state laws, the interview questions will vary depending on the state requirements and the type of document you choose to create.

OVERVIEW

Reasons to Create

• Declining health.
• Designate a specific person to make health care decisions for you.
• The possibility of surgery or hospitalization.
• State your wishes so that it is more likely that they will be carried out.
• Diagnosis of a terminal condition with no hope of recovery.

Before You Begin

Information you may need:

• Your name, address, social security number, and date of birth.
• Name and address of the person or persons who will make health care decisions for you if you are unable to do so.

Reasons to Update

• Change or set limits on the medical care that is provided.
• Respond to changing medical technology.
• Respond to a change in health care laws.
• Respond to a change in health, including pregnancy.
• Designate a different person to make health care decisions for you.

DOCUMENT INTERVIEW

Who is completing this document?

This program allows you to create a Living Will, a Health Care Power of Attorney, or an Advance Directive which combines the features of Living Wills and Health Care Power of Attorney documents. For states with "Advance Directive" legislation, this program provides an Advance Health Care Directive. For states that do not have this specific legislation, this program provides a document that combines a Living Will and Health Care Power of Attorney if you choose both.

If you have selected a Living Will….

A Living Will is a document where you can state your wishes regarding life-sustaining treatment in the event that you either have a terminal illness and are expected to die within a relatively short time or are permanently unconscious. In general, individuals use Living Wills to indicate whether they want certain medical treatment withheld or withdrawn in order to allow a more natural death if the treatment is merely prolonging the dying process or there is no hope of recovery.

A Living Will is only effective when you are no longer able to make and communicate your own wishes. For example, if you suffer a stroke or are in a motor vehicle accident and suffer a severe brain injury so that you are in a coma, you may not be able to communicate your wishes. A Living Will in these circumstances helps you communicate your desires about certain medical procedures.

You, as the person completing the Living Will, may be referred to in the document as the "Declarant."

If you have selected a Health Care Power of Attorney….

In a Health Care Power of Attorney you may designate a person (an "Agent") who will have the authority to make health care decisions on your behalf if you are unconscious, incompetent, or otherwise unable to make such decisions.

You, as the person completing a Health Care Power of Attorney, may be referred to in this document as the Principal or Declarant. The person that you designate to make decisions for you may be referred to as an Agent, Attorney-in-Fact, Proxy, Representative or Surrogate.

The Health Care Power of Attorney is a "durable" power of attorney. Under a "durable" power of attorney document, an Agent's authority to act on your behalf generally becomes effective upon your disability or mental incompetence, and continues during such period of disability or mental incompetence. If the Agent's authority continues to be effective despite your disability or mental incompetence, the power of attorney document is said to be "durable." Even though you execute a Health Care Power of Attorney, you still retain the right to give directions to your physicians and other health care providers as long as you are able to do so.

Revocation of Health Care Directives

You may revoke a health care directive, such as a Living Will, Health Care Power of Attorney, or Advance Directive, by executing a new document or by using a Revocation document provided by this program. Many states specify that an advance directive may be revoked at any time and in any manner. However, the best method is to provide a written, signed and dated revocation to the Agent (if any) and the appropriate health care providers. Although other documents require a witness or notary, legal principles encourage the recognition of a revocation without the necessity of such formalities. IN MANY STATES, THE REVOCATION DOCUMENT MAY BE CONSIDERED INEFFECTIVE UNTIL YOUR AGENT AND/OR PHYSICIAN HAVE BEEN NOTIFIED OF THE REVOCATION.

Historical Background

Prior to 1990, most state statutes clearly provided that an advance directive (Living Will, Health Care Power of Attorney, or Advance Health Care Directive) was appropriate for someone who was terminally ill. However, most of these statutes were silent on the question of whether an advance directive could also apply if a person was permanently unconscious. In a U.S. Supreme Court case decided in 1990, a clear indication was given that you should be free to state that your advance directive should also apply if you are permanently unconscious, if that is your desire. In response, many states amended their statutes to provide guidance to persons who wanted to clearly specify that their advance directives should apply if they were permanently unconscious.

Patient Self Determination Act

Hospitals and other health care providers are now required under the Patient Self Determination Act to provide patients with information regarding the rights of patients to make their own health care decisions, including the right to accept or refuse medical treatment. Health care providers may ask you for copies of any Living Will, Health Care Power of Attorney or Advance Health Care Directive to place in your medical records.

What kind of health care directives do you want to give?

Differences Between Documents

Health Care Power of Attorney documents are broader than Living Wills because they designate another individual to make health care decisions in circumstances beyond those generally covered by a Living Will. Living Wills generally only pertain to situations where an individual is expected to die relatively soon or is permanently unconscious. In contrast, an Agent under a Health Care Power of Attorney can make decisions for an

individual even if that individual is not terminally or seriously ill. Additionally, most Living Wills do not allow you to authorize someone else to make decisions for you.

You may choose to prepare and sign both a Living Will and Health Care Power of Attorney. Generally, your Agent must act consistent with your known wishes. A Living Will can provide guidance to your Agent as he or she makes health care decisions for you.

A Health Care Power of Attorney document is different than a general power of attorney document. General power of attorney documents do not usually provide that the designated agent can make health care decisions. The general power of attorney form is designed to cover business or financial decision making.

If you become permanently unconscious, do you want life-sustaining procedures withheld and withdrawn?

Life-Sustaining Procedures

Life can sometimes be prolonged if certain treatment, often called "life-sustaining procedures," is provided. Generally, a life-sustaining procedure means any medical procedure or intervention that (i) uses mechanical or other artificial means to sustain, restore, or supplant a vital function, and (ii) only prolongs the moment of death. Some states use other terms, including "life-prolonging procedures," "death-delaying procedures," "death-prolonging procedures," "medical maintenance treatment," and "extraordinary procedures" for life-sustaining procedures.

Permanent Unconsciousness

The term "permanent unconsciousness" generally means a lasting condition, indefinite and without change, in which thought, awareness of self and environment, and all other indications of consciousness are absent. Sometimes this condition is described as a "coma," an "irreversible coma," being "persistently unconscious," being "permanently unconscious," or a "persistent vegetative state" from which there is no known hope of recovery.

Terminal Condition

A "terminal condition" is a progressive, incurable, or irreversible condition that is expected to cause death within a relatively short period of time, unless life-sustaining procedures are used. The adjectives "incurable" and "irreversible" are used to indicate that there will be no "recovery" from the condition by means of a cure or treatment of symptoms. The term "relatively short period of time" provides flexibility to the health care providers who, at best, can only provide an estimate of when death will occur as a result of the condition and other health factors.

Will you include a statement regarding artificially provided foods and fluids

Artificial Nutrition/Hydration

The term "artificial nutrition/hydration" generally means food and water that is provided to a person through an artificial means such as "feeding tubes," "tube feeding" or "intravenously," rather than through the mouth. Because food and water is a basic necessity to life itself, there have been concerns in the past as to whether a person should be permitted to request that food and water not be provided. A U.S. Supreme Court case decided in 1990 makes it clear that a person can state his or her preference not to receive artificially administered food and water.

Do you want to make an organ donation at the time of your death?

Anatomical Gifts/Organ Donations

Organ donations are often referred to as "anatomical gifts." All fifty states have passed some version of the Uniform Anatomical Gift Act, generally providing that individuals may make a gift of their organs and tissues during their lifetime with the gift to take effect on their death. Additionally, family members may generally donate your organs and tissues when you die if you have not indicated that you are opposed to such a donation. It is therefore important to document your wishes concerning organ donation. Many states provide organ donation questions in health care directives.

What organs do you wish to donate?

Organs Donated

Unless you specifically desire to exclude certain organs, tissues, or parts from donation, it is recommended that you simply indicate that any needed organs can be donated. This allows the most flexibility and the greatest possible use of your organs. Many different organs are needed including the heart, lungs, kidneys, liver, and pancreas. Tissues and parts, such as bone, skin, and corneas, are also needed. Some organ donation forms allow you to make an anatomical gift of the entire body. However, the donation of one's entire body often requires specific arrangements with the designated recipient of the body, such as a medical school. It is a good idea to contact a medical school if you desire to make such a donation

For what purpose may your donated organs and tissues be used?

The Use of Organs

The Uniform Anatomical Gift Acts provide that organs, tissues, or parts may generally be used for transplantation, therapy, research, and medical education. However, it is not always possible for organs and tissues to be used for all purposes. Some organs or tissues may not be used if it would interfere with an autopsy or another investigation. Additionally, if you suffer from a particular disease or die under certain circumstances, your organs and tissues may not be suitable for transplantation. Certain medical tests will be completed to assure that organs and tissues are acceptable for transplantation or therapy. Organs and tissues not useful for transplantation or therapy may be useful for research or education.

Who should receive your donation?

Designated Donees

The Uniform Anatomical Gift Acts allow you to designate a "donee," the individual or institution who is to receive the donated organs and tissues. In general, the following are acceptable donees: hospitals; surgeons; physicians; accredited medical or dental schools, colleges, or universities; organ/tissue banks or storage facilities; organ procurement organizations; or a specified individual who needs an organ or tissues for therapy or transplantation.

If there is no specific designated donee or the designated donee is not available or rejects the donation, depending on the specific state law either the attending physician or any hospital can generally accept the donation.

Once a donee accepts organs and tissues, that donee can then transfer the organ and tissues so that they are ultimately received by a party who will use them. There is a national system to allocate organs to individuals who need them for transplantation. Factors such as the urgency of the prospective recipient's need for a transplant, the closeness of the biological match between donor and recipient, and geographic proximity help determine who receives donated organs.

Designating a Specific Donee

Since not all donees can use a donation for any purpose, care must be taken to avoid inadvertently restricting or essentially revoking a donation. For example, a medical or dental school, college, or university is generally not authorized to use organs or tissues for transplantation or, in some states, for therapy. Individuals, except for physicians and surgeons, can only use organs or tissues for transplantation or therapy needed by that individual. Some states prohibit designating a donee on the basis of race, age, religion, color, national origin, ancestry, gender, sexual orientation, or physical or mental handicaps.

If you want to designate a specific donee, you are encouraged to contact that donee (such as a medical school or hospital) or an organ procurement organization in your state to assure the necessary steps are taken to accomplish your goal.

Do you wish to include a pregnancy provision?

Many states specify the extent to which an advance directive such as a Living Will or Advance Health Care Directive is effective during pregnancy. These statutes generally fall into three categories:

1. the advance directive has no effect during pregnancy,
2. the advance directive has no effect if the fetus could develop to live birth if life-sustaining procedures are continued, or
3. the statute is silent on the pregnancy question.

This program offers optional provisions regarding pregnancy. Maximum flexibility is offered by allowing you to state a preference regarding the effect of the document during pregnancy, even though that stated preference may differ from your state statute. For example, even if your state provides that a Living Will shall have no effect during pregnancy, this program allows you to state, as a preference, that the Living Will should be given effect if it is determined that the fetus could not survive, even if life-sustaining procedures are continued.

Constitutional Questions

The U.S. Supreme Court has held that a woman may choose to have an abortion, at least during the first part of the pregnancy. If a woman has the right to decide to have an abortion, it seems consistent to expect that a woman could also choose to withhold or withdraw medical treatment even though a result of that decision might be that the fetus might not survive. Therefore, statutes that limit the effect of an advance directive during pregnancy may be unconstitutional because of their infringement on a woman's right to make decisions regarding her body.

What other specific requests or instructions do you wish to make?

Other Requests or Instructions

You may give additional instructions by expressing your wishes in your own words. You may include a statement regarding religious or moral beliefs. For example: "Based on my religious beliefs, I do not want to receive blood transfusions."

You may also wish to specifically state that you do (or do not) want to receive certain types of treatment. For example, you can state: "I do not wish to receive chemotherapy." Other possible treatments to consider include cardiac resuscitation (CPR), mechanical respiration, surgery, or certain medications.

Who do you designate to make health care decisions for you?

Choosing an Agent

The person that you designate as the Agent should be someone you know and trust. The statutes of most states require that the Agent be an adult. In addition, under most circumstances, your Agent cannot be your health care provider (for example, a physician, nurse, employee, officer, director, or operator of a home health agency, hospital, nursing home, or residential care facility), unless that person is related to you. Thus, in selecting an Agent, you should not designate a person who is (or may become) directly involved in providing health care to you, unless that person is your spouse or a family member.

If there are two people that you would like to serve as your Agent, you can name one as an alternate Agent.

Some states refer to the Agent as an "Attorney-in-Fact," "Health Care Agent," "Health Care Proxy," "Health Care Representative," "Patient Advocate," "Proxy" or "Surrogate."

Describe any limitations you would like to place on your Agent's authority.

Your Agent’s Authority

Generally, an Agent has broad authority to make almost any decision regarding your health care if you are unconscious or otherwise unable to communicate your wishes. However, you may limit your Agent's authority. For example, you can state: "My Agent is not authorized to consent to my receiving blood transfusions."

It is not possible to anticipate all of the health care decisions that may be required. If you do not provide specific directions regarding a particular health care decision, your Agent must act in your best interests and consistent with the laws of your state. You should discuss your wishes, values, and preferences regarding your health care with your Agent so that your Agent is best able to make decisions in accordance with your wishes. Your Agent is not liable for health care decisions made in good faith.

Agents and Artificial Nutrition/Hydration

Agents generally have broad authority to make any health care decision on your behalf, including decisions about life-sustaining procedures, unless you limit that authority in this document. However, it is a good idea to be specific about whether your Agent will have authority to withhold or withdraw artificially provided nutrition and hydration.

Decisions Your Agent Can Make

Generally an Agent will have broad authority (subject to limitations you state in the document) to make health care decisions for you. Such decisions might include:

1. whether life-sustaining procedures should be withdrawn or withheld so that you can die naturally if you have a "terminal condition" or are "permanently unconscious";
2. whether "artificial nutrition/hydration" should be provided to you if you have a "terminal condition" or are "permanently unconscious";
3. whether to consent to a surgical procedure or treatment; and
4. whether to authorize the release of your medical records.

Who will be the alternate health care Agent?

Alternate Agents

It is advisable to designate an alternate Agent to provide for the possibility that your Agent will be unwilling, unable, or ineligible to act as your Agent. For example, many states automatically revoke a spouse's authority to act as Agent if the couple is separated or divorced. Any alternate Agent has the same authority to make health care decisions as the original Agent. You may also designate a second alternate agent.

Who do you name as guardian to make decisions for your general welfare?

Guardian or Conservator

In certain situations, depending on specific state law and a person's medical condition, it may be necessary to have a court-appointed guardian. A "guardian or conservator of the person" is a person who is appointed by a court to make decisions for your general welfare if the court has determined that you are no longer competent to make such decisions on your own behalf. The authority of a guardian or conservator to make decisions for your "general welfare" probably includes the power to make at least some kinds of health care decisions. Unlike the Agent under a Health Care Directive, a guardian typically can also make non-health care decisions, such as decisions about living arrangements.

Even though the law requires that guardians be appointed by a court, the court would consider your preferences. In some states' health care directives, you can nominate your choice of a person who would become your guardian or conservator, if that became necessary. In many cases, the person named as the Agent would be the logical choice to serve as the guardian.

Do you authorize your Agent to consent to an autopsy?

Autopsy

Some states include language which authorizes your Agent to consent to an autopsy.

An "autopsy" is an examination of the body after death by a medical expert, usually conducted to determine the cause(s) of death. Except for deaths that appear to have occurred under suspicious circumstances, government officials generally do not have the authority to conduct an autopsy, unless the consent of the deceased person's legal representative (for example, an Executor or surviving spouse) is obtained.

Will this document be witnessed, notarized, or both?

There are restrictions on who may be a witness to the execution of a health care directive. The restrictions are included in a statement on the document that precedes the signatures of the witnesses. The witness requirements should be carefully reviewed prior to the execution of the document. IF THE DOCUMENT IS NOT WITNESSED PROPERLY BY QUALIFIED WITNESSES, IT MAY NOT BE ENFORCEABLE.

SIGNING INSTRUCTIONS

CAUTION: The document may not be valid in your state of residence unless that state was selected in the program. A lawyer should be consulted if there is any uncertainty regarding which state's document to use.

You must be an adult (18 in most states) and mentally competent to execute a valid document. The document must be signed and dated in order to be effective. Depending on your state, the document must be witnessed, notarized, or both. If you designated an Agent, some states require that the Agent also sign the form. Finally, some states require that special provisions within the document be separately initialed or signed.

Review the document carefully for these requirements.

The specific requirements for who can be a witness, whether the document must be notarized, and other execution formalities are printed on the document itself. THESE ARE SPECIFIC TO YOUR STATE AND MUST BE READ CAREFULLY AND COMPLIED WITH TO HELP ENSURE YOU HAVE A VALID DOCUMENT. The program provides the appropriate signature and witness information for your state based on whether you completed a Living Will, Health Care Power of Attorney, or both.

While each state has its own restrictions on who may be a witness, in general, persons should not be used as witnesses if they have been appointed as your Agent in the directive; are your relative by blood, marriage or adoption; are or may become directly involved in providing health care to you; are an employee of your health care provider; or are less than 18 years of age.

You should initial on the bottom margin of each page of the document. This prevents the subsequent substitution of pages.

You should keep a copy of the document after signing it. One copy should be given to each of the following: each health care provider, appropriate family members, and the person named as Agent, if one is appointed in the document. An indication should be made on the document itself regarding who has received a copy, in case there is a need for later retrieval, modification, or revocation.

Before signing the document, you should be completely comfortable that you understand the nature and range of decisions that may be made on your behalf. You should discuss the range of medical decisions with a physician, another health care provider, social worker, pastor, or a lawyer -- someone who is knowledgeable about these issues and can answer questions. You should also discuss the document and your wishes with any person you want to designate as an Agent before doing so to assure they agree to act on your behalf.

If you learn that you have a terminal condition after signing a health care directive, execute a new Directive. This will provide an opportunity to restate or change your wishes in light of your new health status.