Living Will

Ever since our medical technology has advanced to the state of keeping persons alive even though they are in a “vegetative” state with no apparent consciousness or awareness, we have been grappling with the complex moral, religious, medical, emotional, and legal questions presented by such a situation.

A living will declaration is a written document expressing a person’s intentions concerning the use of life-sustaining treatments when they are in a permanently unconscious state or terminal condition.

The following are legal definitions of those terms:

“Life-sustaining treatment” means any medical procedure, treatment, intervention, or other measure that, when administered to a patient, will serve principally to prolong the process of dying.

“Permanently unconscious state” means a state of permanent unconsciousness in a declarant or other patient that, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by the declarant’s or other patient’s attending physician and one other physician who has examined the declarant or other patient, is characterized by both of the following:

1. The declarant or other patient is irreversibly unaware of himself and his environment.
2. There is a total loss of cerebral cortical functioning, resulting in the declarant or other patient having no capacity to experience pain or suffering.

“Terminal condition” means an irreversible, incurable, and untreatable condition caused by disease, illness, or injury from which, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by a declarant’s or other patient’s attending physician and one other physician who has examined the declarant or other patient, both of the following apply:

1. There can be no recovery.
2. Death is likely to occur within a relatively short time if life-sustaining treatment is not administered.

The living will document only applies if you are in a terminal condition or permanently unconscious. Furthermore, the living will applies only when the patient has lost the capacity to make decisions, i.e., is unconscious or otherwise not mentally competent. As long as the patient is able to make their own decision, no part of this law applies.

After it is determined that the living will is operative, then the attending physician must enter this in the medical record along with a copy of the living will. Furthermore, the attending physician must give notice of said determinations to (a) persons designated in a declaration to receive notice, OR (b) if (a) is not applicable then to the following groups in order of priority: 1) guardian, 2) spouse, 3) adult children who are available within a reasonable time, 4) parents, 5) majority of adult brothers/sisters who are available within a reasonable time.

Persons must notify the attending physician whether they object within 48 hours of receipt. Then such person must file a complaint in Probate Court within two business days.

If there is no living will, the attending physician may withdraw life-sustaining treatments (except nutrition/hydration) if:

1. Written consent is given by the following groups in order of priority: (a) guardian, (b) spouse, (c) majority of adult children who are available within a reasonable time, (d) parents, (e) majority of adult brothers/sisters who are available within a reasonable time, and
2. The attending physician and consulting physician determine the patient is in a terminal condition or has been permanently unconscious for the last 12 months.

The attending physician may withdraw nutrition/hydration (i.e., feeding tubes) if:

1. Patient has been in a permanently unconscious state for the preceding twelve months, and
2. Probate Court issues an order to withdraw nutrition/hydration

Copyright ©2008 Michael J. Millonig