May 2, 2017
When planning your estate, it is often the best time to discuss how you would like your health care decisions to be made in the event you cannot communicate your wishes. An advanced healthcare directive is a necessary document for any future planning.
Many people broadly use the term “living will” to refer to a document which instructs doctors and other professionals regarding your wishes for health care treatment if you are incompetent, and either (a) in an end-stage medical condition; or (b) permanently unconscious. While “living will” is used broadly, in the event you wish to name another to make health care decisions for you, the document is technically a “healthcare power of attorney.” A “living will” generally doesn’t appoint another person to make decisions. Generally, living wills and healthcare powers of attorney are referred to as “Advanced Healthcare Directives.” Features of living wills and healthcare powers of attorney can be combined into one, comprehensive document.
Pennsylvania law defines “incompetence” as the inability to understand the benefits, risks and alternatives involved in health care decisions. It also states that a person who is unable to communicate health care decisions, or a person who is unable to make a decision regarding a health care decision, is incompetent. A living will is only effective upon incompetence. It is important to note that an individual may be incompetent to make certain healthcare decisions, but may be competent to make other decisions.
The concept of an “end-stage medical condition” is important to understand. Under Pennsylvania law, an end-stage medical condition is:
- an incurable and irreversible medical condition
- in advanced state that,
- in the opinion of an attending physician,
- will result in death,
- despite continued medical treatment,
- to a reasonable degree of medical certainty.
An end-stage medical condition does not preclude care that can extend or improve life, or would relieve pain.
It is also important that you understand Pennsylvania’s definition of “permanent unconsciousness. An individual is permanently unconscious if they have been diagnosed, to a reasonable degree of medical certainty, that they are in an irreversible vegetative state, or irreversible coma. One view of permanent unconsciousness involves the lack of ability to interact with your environment.
In a living will or power of attorney, one can state, the specific types of care one would like to receive during an end-stage medical condition when incompetent to make decisions. Often these questions involve whether an individual would want to be placed on a ventilator, to receive antibiotics or chemotherapy, CPR, defibrillation and/or artificial food and nutrition. All of these are deeply personal decisions and should be made in consultation with family, professionals and/or religious advisors.
Perhaps the most dogging question people face in this day and age is how to treat severe dementia or Alzheimer’s. There is a growing trend to treat individuals who have severe dementia or Alzheimer’s as having an end-stage medical condition. Your living will should specify your wishes in that regard. Often, an individual with severe dementia, through aggressive treatment, can make a full physical recovery from a physical injury or an illness such as pneumonia. However, that individual would still have the same mental faculties as before the injury or illness. This decision, admittedly, puts many people in a a quandary, but through good counseling, and an understanding of the various decision making consequences, we have found that our clients gradually become comfortable with their decisions.
As our society gets older, and our life expectancy increases, there tends to be greater needs for advanced healthcare directives. Drafting an advanced healthcare directive, in consultation with your lawyer, will ensure that doctors, social workers and the legal system will treat you with the dignity that you deserve if you are ever unable to make your own medical decisions.
The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.