PART
I. SCOPE OF YOUR DECLARATION
& APPOINTING PROXY DECISION-MAKERS
Question
1: Should your Advance Directive for Medical Care apply
only when you are terminally ill or permanently unconscious or
should it apply to all situations in which you
are not capable of making medical
decisions or
are unable to express your wishes?
The 'living will' laws of some states make Advance Directives effective only
when the patient has a 'terminal illness' or 'terminal condition'. Such
a period is usually defined as 6 months or less to live —sometimes
with life-supports and
sometimes without.
The laws that define "terminal illness" as likely
to die within 6 months even
with life-supports in place have
created a very odd situation: They
permit proxies to refuse only treatments which will do no good even
if we are still attached to life-support systems! Some
patients can be maintained indefinitely on 'life-supports'. One
patient has 'lived' over 40 years in a persistent vegetative state. Without
life-supports, all PVS patients would soon die. But
if these patients are not declared "terminal", their
'living wills' might never come into force.
Other states say that 'terminal illness' means likely to die "soon". Does
your state require that a doctor (often two doctors) certify
that you are 'terminally ill' for your 'living will' to become
effective?
Usually, this provision was inserted by opponents who
originally thought that 'living wills' would cause premature deaths. Since
they did not want anyone
to have a right to die, they
decided they would limit all such rights as much as possible.
(This is similar to restrictions in some state abortion laws. The
people who disagree with all
abortions want to make them difficult. Each
prevented abortion is a victory from their point of view. So
under the guise of preserving 'family values', they
require teen-agers who are accidentally pregnant to
inform their parents before they can get an abortion. Similar
provisions include lectures about the development of the fetus, waiting
periods before abortions can be completed, etc. Some
of the same people oppose any voluntary choosing of death. Therefore
they have tried to insert obstacles
in the state laws wherever
possible to prevent people from claiming any right to die.)
QUESTION
1: WHEN DOES YOUR ADVANCE DIRECTIVE APPLY? by JAMES PARK 39
Such provisions create problems for people who
lose the capacity to make their own medical decisions long before they enter a
'terminal condition' as defined by these laws. People
who get Alzheimer's disease would be prime examples. They
can live for 10 years with the disease, even
tho their mental powers might degenerate to those of a child. And
what about people who suffer brain damage that
puts them into a persistent vegetative state? They
are not terminal
because feeding tubes can keep them 'alive' for years.
A few courts have already agreed that it is unconstitutional for
a state to require a declaration of terminal condition for
the proxy provisions of an Advance Directive to come into effect.
However, this situation can be covered by a durable
power of attorney for health care —appointing
a proxy to make health-care decisions for you should
you become incapable of making decisions even
tho you are not
'terminally ill' or 'permanently unconscious'.
You can put durable power of attorney into your Advance Directive and/or
declare that your Advance Directive applies to "all
situations in which I cannot make medical decisions or
am incapable of expressing my wishes". Then,
even if your 'living will' might not be enforceable under
the 'living will' statute of your state (if
there is no official determination of 'terminal illness'), it
is still enforceable under the durable-power-of-attorney statute. Your
proxy will still have full authority to act on your behalf, following
the instructions in your Advance Directive.
Eventually state legislatures will expand their
'living will' statutes to cover situations where
there has been no official determination of 'terminal condition'. Some
states have already corrected their early 'living will' laws by
dropping the requirement for a declaration of 'terminal illness' before
an Advance Directive comes into effect.
We can hope that future editions of this book can drop Question 1 because
all states have
repealed such 'terminal illness' requirements for
Advance Directives to become effective. Such
provisions are counterproductive and probably unconstitutional. Our
right to make medical decisions by means of an Advance Directive should
not require an official declaration of terminal illness.
40
YOUR LAST YEAR: CREATING YOUR ADVANCE DIRECTIVE FOR MEDICAL CARE