Under the law, everyone has the right to make their own decisions regarding their medical care. This is true at any point in your life, including when your life is ending. It is also true even if you are no longer able to express your desires regarding medical care. If that happens, you can use your living will to spell out your instructions for you. A living will also serves the very important purpose of lifting the weight and alleviating the stress your family will surely feel at such an emotional time. But, what happens if there is no advance directive? Who makes the decisions about life-saving measures or end-of-life care? Let our Los Angeles estate planning attorneys answer those questions for you.
Wife or Sister? Who Has the Right to Decide?
In a recent case out of Los Angeles, the court was asked to determine who had the right to decide when to remove life support. In that case, the wife and the sister of the man disagreed and the court had to determine who was the legal decisionmaker. In California, when there is no advance directive in place, a spouse is considered the presumptive decisionmaker with regard to healthcare.
In the case of Juan Romero, a man who had suffered a lack of oxygen to the brain leaving him in a persistent vegetative state, his wife chose to remove his life support and feeding tube. However, his sister filed suit requesting the authority to make end-of-life decisions for her brother. Her argument was that it would not have been her brother’s wishes to cease life support because of his religious beliefs as a Roman Catholic.
Judge’s decision based on California law and the facts
The California court conducted a trial and took testimony regarding not only state law on the matter, but also the patient’s expressed wishes in this situation. First, according to California’s Health Care Decisions Law, the spouse is the presumptive healthcare surrogate for another spouse in times of incapacitation. The judge also made the point that, based on the evidence brought out at trial, the patient had discussed his wishes regarding life support and end-of-life care with his wife. On the other hand, there was no evidence that he had those same discussions with other members of his immediate family. For that reason, the wife was in the best position to know what his wishes would have been. In fact, the testimony revealed that those types of discussions were discouraged by his family.
What is necessary to make a valid healthcare directive?
Each state has its own laws governing living wills. Typically, a living will needs to be written and signed by you. In most cases, it must be witnessed by two other adults. Most states require that you be at least 18 years of age and of sound mind when you draft and execute the living will. It may be surprising how often people confuse a living will with a last will and testament or a living trust. Living wills are often used as a type of healthcare directive. More specifically, a living will is used to provide specific instructions regarding the type of medical treatment you agree to receive or want to refuse if you should ever become critically ill. Living wills include Do Not Resuscitate orders or DNRs.
Three types of living wills
There are three kinds of living wills. The first type provides instructions to your healthcare provider about the medical treatment you would want to be provided. The second type provides “proxy” power to an individual you trust so that person can make medical decisions for you without specific instructions. The third type can do both. There are other options for incapacity planning and expressing your end-of-life care wishes. Let our Los Angeles estate planning attorneys answer explain your choices.
Our Los Angeles estate planning attorneys explaing how a living will works
A living will is essentially a set of written instructions that allows your family and your health care providers to know which course of medical treatment, if any, you want to be followed in the event you can no longer communicate those decisions yourself. Do Not Resuscitate orders are not the only types of living wills. You can also create other types of Advanced Directives which indicate that you do not want to remain on life support in the event you are “permanently unconscious” or brain dead.
Mental incapacity can cause a living will to go into effect
There are a number of medical conditions, such as Alzheimer’s disease, psychosis, and dementia, which are recognized as resulting in diminished mental capacity. Age and senility are also common culprits, making individuals less able to make responsible decisions for themselves. However, a determination of incapacity should never be based solely on a diagnosis. Not all medical conditions presumptively result in a lack of mental capacity. If you have questions about how the living will works, let our Los Angeles estate planning attorneys answer them for you.
Having a living will does not mean you will be denied all healthcare
Just because you have a living will, that does not mean you no longer have the right to medical care. In other words, you will not be abandoned by your health care providers simply because you have a living will. Instead, a living will only pertains to the measures your doctor may determine are useless. But you do not have to worry because your doctors and nurses will continue attending to your needs and comfort for as long as necessary.
Join us for a free seminar today! If you have questions regarding estate planning, trust contests, or any other trust administration issues, please contact the Schomer Law Group either online or by calling us in Los Angeles at (310) 337-7696, and in Orange County at (562) 346-3209.
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