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A living will is a legal document you can use to express your wishes about the use of life-sustaining treatment if you should become terminally ill or permanently unconscious. A living will becomes effective only when you cannot communicate your wishes and are permanently unconscious or terminally ill. The document will tell you doctor (when you can’t communicate) as to whether life-support technology is to be used or not used. A living will can be changed or revoked by you at any time, but cannot be changed or revoked by anyone else. It will be followed for a pregnant woman only if certain conditions apply. It also specifies under what conditions you would want artificial feeding and fluids to be withheld.
Although it does not need to be specified on your living will, an anatomical gift (such as a gift of organs or tissues) can be made upon your death by completing a related form attached to the living will titled Donor Registry Enrollment Form.
A living will only affects care that artificially or technologically postpones death. It would never affect care that eases pain. For example, you would continue to receive oxygen and medical care that includes pain medication, spoon feeding and being turned over in bed.
The standard living will form specifically allows you to direct your physician to write a DNR (do not resuscitate) order for you if two doctors have agreed that you are either terminally ill or permanently unconscious, and it is medically appropriate.
If you have signed a living will indicating you do not want to be kept artificially alive, two doctors who have examined you must agree that you are beyond any medical help and that you will not recover.
It is not just elderly people who need to consider signing a living will. Things can happen to younger people, including accidents and illness. Traffic accidents are the leading cause of death among Ohioans under the age of 45. We have all seen news reports about young people who never expected to be in these medical situations. Without a living will the family has been left with potentially complicated and emotional legal difficulties.
Your doctors do not need your family’s permission to follow the instructions provided through your living will. However you should list notification people on your living will. This requires the doctors to make reasonable efforts to notify a person named in your living will before following your instructions to withdraw life-support. By law, no one can change or overrule your living will if it was freely and correctly executed.
If you want to allow your doctor to withhold artificial nutrition and hydration (for example, feeding tubes) in the event you become permanently unconscious, you must expressly state this in your living will document. However, you do not need to give any special instructions to allow your doctor to withhold nutrition and hydration if you are in a terminal condition.
If you do not sign a living will, your agent listed in your health care power of attorney may be forced to make these end of life decisions for you. Many people use a living will to dictate their end-of-life instructions, but if you choose to have only a health care power of attorney, you can give your agent the power to make all health care decisions, including the use or termination of life-support and artificial nutrition and hydration.
The other critical document in your medical estate plan is a health care power of attorney (or “durable power of attorney for health care,”. This is a legal document that authorizes another person to make health care decisions for you if you cannot make them for yourself. A health care power of attorney names an individual you trust to make all health care decisions for you at any time you cannot do so for yourself, whether or not your condition is terminal. This would only be the case if you cannot make your own decisions regarding treatment. A health care power of attorney requires the person you appoint to make decisions that are consistent with your wishes; and will not overrule a living will if you have both documents.
You may appoint any adult you wish as long as it is not your doctor or the administrator of a health care facility in which you are being treated, or any person employed by either your doctor or a health facility in which you are being treated. Most people would name a family member or trusted friend. It is a good idea to name at least one alternate agent in case the first choice is unavailable.
In Ohio the health care POA and the Living will are two separate documents. Many people will want to have both documents, because a living will only applies in limited end-of-life circumstances, whereas a health care power of attorney covers all other situations concerning your medical care whenever you cannot make health care decisions for yourself.
Ohio law also allows for the creation of a “declaration of mental health treatment,” a document specifically designed to address mental health care concerns. This document is rarely used in Ohio because the standard health care power of attorney addresses both physical and mental health issues.
A health care POA cannot be used to take care of someone’s financial affairs. A Financial POA would be used for:
After signing the health care POA you should let your agents know where you are keeping these documents. If you may want to give one to your named agent, keep another with your personal papers, leave copies with your physician and your lawyer
Ohio’s Living Will Law uses several terms whose meanings are provided below.
Anatomical gift – a donation of all or part of a human body to take effect upon or after death.
Comfort care – any measure taken to diminish pain or discomfort, but not to postpone death. These measures may include the provision of nutrition and/or hydration and any other medical care, such as pain medication and turning a patient.
Donor Registry Enrollment Form – a form that has been designed to allow individuals to specifically register their wishes regarding organ, tissue and eye donation with the Ohio Bureau of Motor Vehicles Donor Registry.
Hydration – fluids that are artificially or technologically administered (e.g., through tubes).
Life-sustaining treatment – any medical procedure, treatment, intervention or other measure that when administered to you serves principally to prolong the process of dying.
Nutrition – refers to food that is artificially or technologically administered (e.g., through tubes).
Permanently unconscious – to a reasonable degree of medical certainty: (1) you are irreversibly unaware of yourself and your environment; and (2) there is total loss of cerebral cortical functioning, which results in your having no capacity to experience pain or suffering.
Terminal condition – an irreversible, incurable and untreatable condition caused by disease, illness or injury from which, to a reasonable degree of medical certainty: (1) there can be no recovery; and (2) death is likely to occur within a short period of time if life-sustaining treatment is not administered.