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Health Care Directive - Cincinnati Living Will Attorney

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The aftershocks of the Terri Schiavo case encourage us to consider what, if any, life-sustaining treatment we would want in similar circumstances.  But how do you make your wishes known? And to what extent is your own will-to-live subordinate to the state’s mandate-to-live?

Since 1990, the Supreme Court has maintained that a competent person always has the constitutional right to accept or refuse medical treatment, Cruzan v. Director, Missouri Department of Health 497 U.S. 261.  Inherent in due process is your right to accept or to attempt to prolong the natural dying process.  On the other hand, the state’s duty is to protect human life and dignity’ and to exercise particular oversight especially when one cannot  communicate competently.  Striking a proper balance between the state’s interest in protecting life and the individual’s right to self-determination is no easy task for the legal system or the human conscience.

In the years following the Cruzan decision, most states adopted statutory mechanisms for making your wishes known.  Ohio law allows you to appoint a Health Care Power of Attorney to make decisions for you while you are temporarily or permanently incapacitated, but it also allows you to make a Living Will Declaration, which directs your doctors how to proceed in the extreme cases of being in a "permanently unconscious state" and/or having a "terminal condition".  If you’re stumbling around the jargon of the last sentence, don’t worry: you’re just noticing how problematic it is to create language to cover a host of what-if situations.

The Ohio Health Care Power of Attorney gives decision-making authority to the attorney-in-fact "whenever I cannot make such decisions".  This broad grant of authority is curtailed only by the Living Will Declaration, a directive to your doctors that kicks-in as soon as you reach a certain condition.  Different states use different buzzwords, but in Ohio they are: "permanently unconscious state" and "terminal condition."  The first state means that a patient is "unaware of myself and my surroundings," and that two physicians agree that a "total loss of higher brain function has left [the patient] unable to feel pain and suffering."  A terminal condition means "an irreversible, incurable, and untreatable condition caused by disease, illness, or injury."  Moreover, two physicians must agree that the patient cannot recover and that death will occur within a relatively short period of time if no life-sustaining treatment is provided.  If an incompetent patient doesn’t fall into one of the categories, then she is in a legal limbo’ herself unable to communicate competently, and her agent unable to take any action to withdraw life-sustaining treatment.  This kind of scenario is a big pot-hole on the health care law highway.

Kentucky law provides for a single document called "Living Will Directive and Health Care Surrogate Designation."  The Health Care Surrogate is able to make any decision which the patient would make if able and competent.  Of course, the Surrogate cannot contravene the patient’s own directives as expressed in the document.  Unlike Ohio, however, Kentucky’s Living Will does not direct the withholding of artificially provided nutrients, but it only authorizes the Surrogate to make that determination under an imminent death or permanent unconscious state test.  Kentucky adds another important factor in determining whether to withhold nutrition and hydration: whether the burden of such food/water would outweigh the purported benefit.  This burden-benefit balancing test left to the decision of a Surrogate seems to be the middle ground in this evolving public policy.  It does not isolate itself to vaguely defined conditions, and it provides flexibility for the Surrogate to make the choice without having his hands tied.

There are significant differences between Ohio and Kentucky’s Advance Health Care directives.  In Kentucky, the Surrogate calls the shots.  In Ohio, the Power of Attorney gives a broad range or authority, but leaves the  "pulling the plug" decision to you (by advance directive).  You do not have to execute the Living Will Declaration, especially if you particularly trust your health-care power of attorney to make that decision in your best interest.  Younger couples with children, for instance, may consider leaving life-or-death situations to a spouse or parent, allowing more discretion as circumstances may change.  When younger individuals without any impending health problems execute these documents, they may want to consider executing a Health Care Power of Attorney or Analogous Surrogate document to allow  the maximum opportunity for recovery and to leave the final choice on the prolongation of human life to a consensus of loved ones and medical professionals.

Cases on some of the what-if scenarios are creeping into the courtroom.  Ohio statute requires a twelve-month waiting period between entering the "permanent unconscious state" and the cessation of life-sustaining treatment, R.C. 2133.09 .  However, at least one court has found the twelve-month period to be unconstitutionally arbitrary, noting that the twelve-month period would not benefit the patient in any way, In re Guardianship of Myers, 610 N.E.2d 663 (Summit Co. Common Pleas 1993).

While a Kentucky Surrogate Designation gives a Surrogate any authority you have, you can make the documents limited only by the limitations you impose yourself.  The Courts have slowly limited the broad powers enacted by the legislative.  In the seminal and only ruling from Kentucky’s High Court on the interpretation of Advance Health Directives, the Court adopted standards similar to Ohio that life-supporting treatment cannot be withheld except under the terminal condition/persistent vegetative state, Matthew v. Woods, 142 S.W.ed 24 (1999).  The Woods case centered on a comatose patient; the Court held that language in the Surrogate directive must be limited, even though granting the document allowed the surrogate to make decisions whenever "one no long has decisional capacity."  Since in theory, a guardian could automatically withdraw life-support to an incompetent, the decision in the Woods case centered on public policy reasons.  KRS 311.269, however, allows for the withdrawal of life-supporting treatment be permitted when the benefits of the treatment outweigh its purported benefit.

It is recommended that you consult with an attorney to ensure that the documents include your wishes and function well with your current family situation.  Once you have your documents set-up, you will want to re-execute new ones every couple years.  Courts need "clear and convincing" evidence to remove artificial life support.  This is a somewhat higher standard of proof- usually employed in family matters.  A recently executed directive meets that burden of proof, but let’s say you executed one five years ago, and then you casually mention to a friend at a funeral a few years later about how you would or would not like to live like that.  Then there would be a question of fact which might ultimately decided against what your wishes would have been.

Both Ohio and Kentucky statutory forms for advance health care documents provide for the addition of special instructions.  Some people choose to nominate more than one designee in the hopes that their consensus will be determinative of what your wishes would be.  With these kind of "add-on" provisions, you can specify treatment that may be contrary to your religious or metaphysical beliefs (e.g. blood transfusions, organ donation, etc) While the courts generally defer to one’s creed, you may want to consult with a clergyman who might supply an affidavit concerning your particular beliefs.

The increase of unmarried couples- both heterosexual and homosexual- marks a strong necessity for people in those classes to execute health care documents.  By executing these documents, the life-partner receives authority to make the necessary decisions often without the consent of family members mettling in intimate affairs.  Additionally, Kentucky and Ohio have sections in their documents allowing you to make organ donations.

Perhaps the most-damning questions facing those without advance health care directives is: What happens to me if I did not appoint someone to stand in for me?  Two similar situations present each other in Ohio and Kentucky law.  Generally if you lose your decisional capacity, a family member or friend can petition a court to be named your legal guardian.  If that step is not taken, your designated Power of Attorney kicks in: to be followed obviously by family members: spouse, parents, and next of kin.  The lingering question, however, is whether advance directives are so set in stone as to allay future family challenges.

Privacy advocates have long sought to keep government meddling out of the bedroom– especially when that bedroom contains a deathbed.  The bottom-line is that to prevent your situation from becoming the centerpiece of an ethics debate, you need to execute your decisions in the proper manner and thoughtfully convey your wishes to your loved ones.  William Hesch is a living will attorney can provide additional Cincinnati probate will assistance.  Contact us today if you need legal health care assistance.

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