From
The KDDK Advantage - February/March 2007
Advance Medical Directives
As
more and more baby boomers reach retirement age, the
elder population is growing rapidly. And while people
prefer to make their own medical decisions, the fact
is many will find themselves unable to do so at some
point. That’s why it is imperative that individuals plan
their medical directives in advance. The failure to plan
in advance can lead to enormous costs, legal battles
and family turmoil.
The recent case of Florida
resident Terry Schiavo demonstrated the potential effects
of failing to plan in advance. Schiavo was rendered totally
incapacitated
at age 26 as a result of a heart attack. Because there were no advance medical
directives, Terry’s family and husband spent countless hours and tremendous
financial resources during a 15-year legal battle over
whether to keep her alive by artificial
means. Ultimately the U.S. Supreme Court decided not to impose its will on
Terry’s treatment and allowed her husband to withdraw
life support. Even at the time
of her death, it remained uncertain what choice she would have made for herself.
In Indiana there are
two commonly used advance medical directives that can
prevent a situation like that
which the Schiavo family endured: The health
care power
of attorney and the living will. There are subtle but important differences
between the two.
A health care power of
attorney is prepared in advance but takes effect only
if the individual becomes incapable of making his or
her own health
care
decisions. The health care power of attorney authorizes another person
to make decisions
that affect the individual’s medical treatment including the consent,
refusal or withdrawal of medical care — even if the decision
could result in death.
A living will is a written
declaration made by a competent person over the age of
eighteen which comes into play only in the event the
person
has an
incurable disease, illness or injury that is likely to cause death
within a short period
of time. The living will establishes the person’s wishes regarding
the removal of life support, as well as the use or refusal
of artificial
nutrition or
hydration to prolong the dying process.
Indiana has enacted statutes
that address health care powers of attorney and living
wills. It is crucial to adhere strictly to the formalities
established by the state to make these documents legally binding
and enforceable. Without
a medical directive, health care decisions can be made in accordance
with applicable
statutes without regard to what the individual’s wishes might have
been.
Advance planning for medical
decisions should be a part of an overall estate plan.
It is the only certain manner to
ensure that an individual’s
wishes
on medical decision- making will be carried out.
Partner Ted
Barron practices health care, business, employment and immigration
law. A native of Evansville, he is fluent in Spanish
and also speaks
Portuguese. Ted can be contacted at rbarron@kddk.com or 812-423-3183.
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