by Bruce L. Dorner
I meet with many families to prepare wills and supporting documents. During our conversation I always ask, “If you are in a terminal condition and there is no hope that you will recover, do you want to be kept alive at all costs?” Often I get a response indicating, “Oh, my family knows what I want.”
That type of response is exactly what caused all the trouble for the family of Terri Schiavo. She was the young lady from Florida who went into a coma that could not be reversed. Her parents had one view of what she wanted and her husband had exactly the opposite view. Terri never prepared health care directives. So, off they went to court, after court, after court. Each side of the family tried to do what they thought Terri wanted. We watched all the turmoil on television and formed our own views. Was either side wrong? Was either side right? In truth, it was a very sad series of events that could have been avoided.
The more effective way to deal with the question about extra ordinary life preserving treatment is to have your own health care directive, often called a Living Will. A significant revision to New Hampshire Law takes effect on January 1, 2007 as Chapter 137-J of our statutes.
The new law relaxes some of the requirements for preparing and signing a Living Will and Health Care Power of Attorney. Together these documents are known as “advance directives.” In essence, you are telling your doctors and family what you want done, or who speaks on your behalf in the event any of the circumstances specified in them should arise. Prior to this new law, you had to prepare two completely separate documents to deal with these medical issues. Now, they may be stitched together in a single document.
The formalities for signing have also been relaxed. You are no longer required to sign them in the presence of a Justice of the Peace or Notary Public. You may sign them in the presence of two independent witnesses. There are certain requirements for witnesses which should be carefully followed.
The advance directives serve two primary functions. First, the Living Will is your personal instruction that if death is imminent, you have given clear instructions as to what you want for end-of-life medical care. Second, the Health Care Power of Attorney identifies who has authority to speak on your behalf, to give consent to or withhold medical care if you are incapacitated. Yes, there is a difference! In the first, death is at hand. In the second, you may be hurt from an accident and just unable to communicate your wishes at the moment.
Now, let’s not move too quickly just to collect the massive inheritance from Grandpa! Before a Living Will is acted upon, two doctors or a doctor and an Advanced Registered Nurse Practitioner, must personally examine you and certify in writing that there really is no hope. That continuing treatment would only artificially prolong the dying process. At that point, if your Living Will so provides, you can either maintain or discontinue artificial nutrition and hydration.
Another change in the law qualifies Advanced Registered Nurse Practitioners to certify as to incapacity or terminal condition. In many rural areas the ARNP is the primary caretaker and has received significant training and education, as is evidenced by the confidence the legislature has shown by granting them authority to act in these circumstances. However, if you are uncomfortable with an ARNP having input to the process, you may delete references to the ARNP from your health care directives.
If you have specific religious or philosophical beliefs, you may custom tailor your advance directives to meet your needs. These should be carefully discussed with your health care providers, family and attorney.
Another addition under the new law is the ability to deal with the “difficult patient.” We’ve all heard about Uncle Joe who wouldn’t take his medicine, even though he was much better when properly treated. The new statute provides that you may include a statement in your Power of Attorney for Health Care that, “even though I am incapacitated and I object to treatment, treatment may be given to me against my objection.” I expect there will be some discussion between attorneys and health care providers as to when this language should be included.
In our ever-changing society there has also been a concern about what happens when someone has designated their spouse as agent under the power of attorney for medical care. The new law states that if you named your spouse as agent, his or her authority is revoked upon the filing of a law suit for divorce, legal separation, annulment or protective order. Therefore, it is a good idea to have a second choice named in your documents. However, even if you get divorced, you can sign new health care directives naming your ex-spouse if you desire.
If you have advance directives prepared under the old law, they are still legally enforceable. However, given the many changes in the new statute, it would be a good idea to discuss your personal situation with your attorney. Revising your old documents is a personal decision.
The new law has many other twists and turns which need to be considered for the needs of each individual and family. There isn’t enough space to include all the provisions, nor would most people enjoy reading the “fine print.”
So, for all of my readers who have been saying, “I’ve got to call a lawyer to make out a simple will,” I urge that you act now. However, don’t ask for a simple will, ask “What do I need to do to adequately protect my family in the event of my death or serious illness.” That’s the true core value of a caring family!
This article provides general information only. It is not legal advice. You should consult with your own attorney before making any legal decision.