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In 1991, the State of Ohio adopted the Living Will and Durable Power of Attorney for Health Care Law which allowed Ohio residents to execute living wills and durable powers of attorney for health care. Since that time, these documents have become an important part of an individual’s estate plan. Unfortunately during this time of the COVID-19 virus, families across the country have been forced to make a number of difficult health care decisions for their loved ones. In order to be proactive instead of reactive during this uncertain time, individuals need to understand the purposes and differences between these two documents, determine whether they want to have one or both of these documents, review their specific wishes with their loved ones, and possibly revise these documents accordingly.
The purpose of a living will is to document your wishes that life-sustaining treatment either be withdrawn or withheld if you are unable to make your own medical decisions and are in either a terminal condition or a permanently unconscious state as determined by two physicians. This is an individual’s ability to actually state (while they are capable of making the decision) that if they are ever in a terminal condition or a permanently unconscious state that they do not wish to have any life-sustaining treatment. Therefore, a living will deal with life and death situations.
A durable power of attorney for health care is a legal document in which individual names another individual to make health care decisions if they are not capable of making those decisions themselves. The agent named in the durable power of attorney for health care has broad authority in making health care decisions for an individual who is incapable of making those decisions for himself including but not limited to the determination of whether or not to continue or whether to withdraw life-sustaining treatment. Therefore, the execution of a durable power of attorney for health care provides an individual with authority over a more broad set of circumstances than the living will. A durable power of attorney for health care is not only important to have in life and death situations, but is also important at times when the individual is simply unconscious or incapacitated.
If there is a conflict between the living will and the agent’s decision in a durable power of attorney for health care, then the living will controls. It is necessary to understand that if an individual executes a living will during his or her life, then they are stating that they do not wish to continue to receive, or to receive at all, life-sustaining treatment if they ever are in a permanently unconscious state or terminal condition as determined by two physicians.
Both of these documents also allow an individual to state their specific wishes in specific situations. Some of those wishes may include the following: (1) the withdrawal of nutrition and hydration if the individual is in a permanently unconscious state; (2) a decision on whether or not to receive CPR after a cardiac arrest; (3) a decision concerning whether or not to be an organ donor; and (4) a decision on whether or not to use a ventilator or trach if an individual is unable to breathe on his own.
If you are interested in learning more information about living wills and durable powers of attorney for health care, it is very important that you contact your estate planning attorney who can discuss these documents with you so that you can be sure to understand the documents in their entirety and appreciate the various decisions that you are making when you execute either a living will or durable power of attorney for health care or both. At the very least, discuss your specific wishes with your family so that a loved one can make sure your health care wishes are followed.
Stay safe my friends.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.
James F. Contini II, Esq.
Certified Specialist in Estate Planning,
Trust & Probate Law by the OSBA
Krugliak, Wilkins, Griffiths & Dougherty Co., LPA
405 Chauncey Ave., NW
New Philadelphia, Ohio 44663
Phone: 330-364-3472
Fax: 330-602-3187
Email: jcontini@www.kwgd.com