That is the question posed to clients preparing their estate plans. Most of us remember the fifteen year battle of Terri Schiavo, which ended in 2005 after a very long legal battle between her husband and parents and a very public debate about her right to die or to live. Aside from asset distribution upon your death, one of the most important considerations in preparing your estate plan is what your wishes are in the event you are determined to be permanently unconscious or terminally ill.
Many states, including Ohio, have a state statute that allows you to execute a legal document, also known as an advanced directive, stating that if a medical determination is made that you are permanently unconscious or terminally ill, then you direct your physician to do the following: not administer life-sustaining treatment, including CPR and artificially or technologically supplied nutrition or hydration; to withdraw such treatment, including CPR, if such treatment has started; to issue a do-not-resuscitate order; and, allow you to die naturally without any action taken to postpone your death.
In addition to a living will/advanced directive, a Durable Health Care Power of Attorney, gives a person you designate (the attorney-in-fact) the power to make most health care decisions for you if you lose the capacity to make informed health care decisions for yourself. This power is effective only when your attending physician determines that you have lost the capacity to make informed health care decisions for yourself and, notwithstanding this document, as long as you have the capacity to make informed health care decisions for yourself, you retain the right to make all medical and other health care decisions for yourself.
If you have both a living will and a durable health care power of attorney when you are determined to be permanently unconscious or terminally ill, your living will directives will control and your attorney-in-fact cannot alter the decision you made for yourself in your living will. However, if you only execute a durable health care power of attorney, your attorney-in-fact will make the decision for you regarding life-sustaining treatment in the event you are determined to be terminally ill or permanently unconscious.
Clients often recount myths about why they should not execute a living will or a durable health care power of attorney, or have a misconception about the effects of a these directives. While you can find forms in most states for these documents, it is advisable to consult with an estate planning attorney at Gallon, Takacs, Boissoneault & Schaffer Co., LPA to determine which documents are right for you.