NEWSLETTER FOR OUR CLIENTS AND FRIENDS Medical Power of Attorney vs. Living Will, What's the Difference?
January, 2006 Because of major news headlines regarding end-of-life decisions, many people are concerned and confused about what documents they need to make their wishes known to family, friends, physicians and hospitals regarding medical care. Do you need a Living Will? Do you need any other document? When should these documents be prepared? Are they effective anywhere? A Declaration as to Medical or Surgical Treatment, commonly called a Living Will, is a vehicle that was created by the Colorado Legislature, Section 15-18-101 et.seq., C.R.S. for adults to make their wishes known regarding end of life decisions, when they have a condition that is not curable or reversible. The one-page form declaration, as shown in the Colorado statutes, can be found at your local hospital, clinic, nursing home, assisted living center, or at our office. The Living Will is used at the very end of a person's life and it directs the hospital or other health care provider to withdraw life support and nourishment through directions given in the Living Will. A person can direct that life support and nourishment be continued for any length of time, from 1 day to 7 days or to 180 days, or that different kinds of life support be continued or withheld. The Living Will must be signed and witnessed by two persons who are not family members, physicians, employees of the attending physician, or any person who has a claim against the estate ("Disallowed Person"). If a person is unable to physically sign the document and they are still mentally competent, the Living Will can be signed in the disabled person's presence by another person who is not a Disallowed Person. A Living Will can be revoked at any time orally, in writing, or by burning, tearing, or destroying the document. Most hospitals require a Living Will to be signed prior to going into any surgery; however, they prefer to see a document that has been signed previously and made available to the hospital because the person has usually signed it under less stressful circumstances. The Medical Power of Attorney ("MPOA"), on the other hand, is used at those times when a person is not necessarily terminally ill, but is unable to communicate. The document gives authority to another person ("agent") to make medical decisions when a person is unable to do so. For example, if there is a car accident and a person cannot speak or communicate with the physician because the person is in a coma, the agent can do so using the MPOA. The authority of the agent can be limited to particular situations or it can give very broad authority for all sorts of medical decisions, all of which can be contained in the MPOA. There should be a second agent authorized in the MPOA, in case the first agent is not available for any reason. In addition to the agent being able to make medical decisions, because of new federal guidelines regarding patient privacy surrounding medical treatment, an MPOA gives the agent the right to view medical records. Many hospitals, in the new privacy environment, will not give even simple patient information over the telephone; for example, when a friend has had a heart attack and the hospital is called to ask how the friend is faring. The hospital is not allowed to give any information to unauthorized persons. With an MPOA in place, the agent will be able to obtain medical records and other pertinent information, as if he or she were the patient asking for the documents. An MPOA can be created to go into effect immediately so that the agent can act even if a person is not disabled, or it can go into effect only when a person is not able to communicate. Note that the Living Will or the Medical Power of Attorney are not iron-clad documents and can be contested by family members in a court of law. The court will appoint a guardian ad litem to represent the patient and the court may require independent medical evidence be presented by all interested parties. The court will then decide whether or not the document is valid and make an appropriate order. A properly drafted and executed document will usually sway the court's opinion. The Living Will and the Medical Power of Attorney can be executed at any time. There is no need to wait until a person is older or in the hospital. Accidents happen and it is difficult to predict the future. If life is too busy at the present to prepare the documents, at least family and friends should be notified of wishes and concerns regarding medical care and end of life decisions. This will also help prevent court contests of these important issues, because the family will know the person's intent. Please call our office if you have any questions about this information.
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