Friday, May 30, 2008

LIVING WILLS

I had a long time friend pass away recently. Janie and I went to school together beginning in the 3rd grade. She was a “girl” friend in every sense of the word. When we graduated from high school, as in most cases, we went our separate ways. After I moved back to town, she contacted me, and I would talk to her once a year, usually on my birthday.

In 1992, she called my office and requested that I draft up a will for her. That is about the time Living Wills were added to the “death document” list, and I had her sign one of those also. What she didn’t tell me is that when she was a toddler, she suffered from polio. There was a full recovery, or so she thought. The next time I heard from her, she was in a psychiatric hospital. Apparently, the polio settled in her brain, and re-emerged when she turned 45 causing her brain to shrink.

Then all contact ceased. I heard that she her mental condition was deteriorating slowly but surely. Several months ago I got a call from another lawyer in town telling me that Janie was in a coma, and was brain dead. He represented another friend of Janie’s who called him in for help. She had no family, and they were struggling to get the machines turned off to let her die in peace. He was looking for a will, hoping that the executor of the will could make the arguments relating to the machine issue. He had found some correspondence from me to Janie in her papers, and hoped I could shed some light on things. All parties were at the same time happy, and deeply saddened, that Janie has signed a living will. We presented it to the doctors that afternoon, and Janie died within an hour.

As technology and medical care improves, the line between life and death becomes more and more blurred. The burden of making tough life and death decisions is increasing each year. It’s easy to say when we or our loved ones are living: “Don’t let that happen to me. Turn the machines off.” It’s another thing to do it. A Living Will takes all doubt and any guilt away from the surviving loved ones and/or friends.

Health Care Powers of Attorney, which I addressed in a previous article, do contain these types of provisions, but are mostly used for by caretakers for extended health care issues if the grantor cannot make those decisions him or herself, as in a stroke, for example. Living Wills, on the other hand, are issue specific. If I am brain dead, turn off the machines. They do not rely on the decision having to be made by someone else.

Ohio has a standardized Living Will form. It must be witnessed by two people or be notarized. Either way is sufficient. It has initial lines authorizing the health care provider to not provide artificial nourishment or liquids if you are brain dead. It also has provisions for organ donor type activity, which tend to complicate the form. I generally ignore it if provisions for organ donation have been made on one’s driver’s license.

For Living Wills and Health Care Powers of Attorney, I have my clients sign several forms. I keep an original in my file, and advise them to keep an original with their important documents, and give an original to their family physician as well as a copy to whatever family members they deem necessary, or at least let them know where an original can be found.

As always, check with your legal professional before signing anything. Any such legal document is powerful by its nature, and should be used in conjunction with a complete estate plan.

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