Living wills spell out your end of life wishes November 15, 2003 Regular News Living wills spell out your end of life wishes The concept is foreign to many — a living will — planning for life after life as we know it. It’s difficult enough planning for death — deciding how you want things to be once you’re gone. But what if you don’t have the ability to decide? What if you’re not gone, but can’t communicate? How will your “will” be carried out?The declaration known as a living will has statutory backing (F.S. Ch. 765), allowing a person to plan for incapacity, and if desired, to designate another person to act on his or her behalf and make necessary medical decisions.“A living will is implemented when you can no longer make decisions,” said Christine Whitney, chair of the Health Law Section of The Florida Bar.Whitney noted that this implementation cannot occur until two things happen:• The patient has no capacity to make decisions.• The treating doctor and a consulting doctor find the patient is either in a terminal condition, in a permanent vegetative state, or has an end-stage disease.“I think everyone needs to have a living will,” said Louis Guttmann III, chair of the Real Property, Probate, and Trust Law Section of The Florida Bar.“If someone has thought about the issues they should use this vehicle so that their wishes are carried out.. . . They need to document whatever feeling they have so there is no ambiguity.”“The tragedy surrounding Terri Schiavo underscores the need for all Floridians to have a living will,” agreed Florida Bar President Miles McGrane.The Florida Bar is doing its part in educating about the procedure by putting information about living wills and other advanced care directives on its Web site at www.flabar.org.Whitney said the Health Law Section also has put up standard forms for living wills on its Web site at www.flabarhls.org. Whitney also said there are three basic types of forms — those created by the legislature, those drafted by organizations such as Partnership for Caring, and, if desired, forms for specific needs. These can be as detailed as to whether you prefer to have music played, and if so, whether it be Bach or Beethoven.“You probably need an attorney present if you’re not going to use a standardized form,” Whitney said.As the standard procedure goes, once a determination has been made that a person is incapacitated, that person’s living will is reviewed for validity. Standard forms have been reviewed before and won’t leave as much confusion as to intent.“You don’t actually need a form,” Whitney said. “You can give oral instructions if they are properly written on your hospital chart.”Whitney said that a living will needs to be witnessed by two people, and the contents of the will can be changed at any time, even as to the refusal or acceptance of treatment.“The acquisition of a living will should not be a presumption that one wants to continue living if incapacitated,” said Laird Lile, chair-elect of the RPPTL section. “It only addresses what that person’s wishes are.”Laird also pointed out that having something in place is better than nothing.“If you can’t make the decision and you are going to [die] because two doctors have said so, this is your chance to have your wishes fulfilled,” said Whitney, but she advised that families dealing with like circumstances should consult a hospital’s ethics committee before any decisions are made.“Religion and ethnicity can come into this,” Whitney said.For example, if one of the doctors who reviews the validity of the living will has a religious belief against ending a person’s life, that doctor might not vouch for the incapacity of the patient.Alternatives to a living will include designating a health care surrogate or a durable power of attorney. The power of attorney shifts decision-making for all aspects of a person’s life to the designee. The health care surrogate is designated solely to make medical decisions.Whitney said that sometimes a health care surrogate is more effective than a living will in that a written declaration can cause confusion. That’s where the designation of a health care surrogate is a critical decision — a responsibility that must be understood by the surrogate.For more information on living wills and health care advance directives visit the Bar’s Web site at www.flabar.org.