Living Wills and Durable Powers of Attorney

Special Kinds of Agreements

Advanced medical techniques have made it possible to prolong the lives of many people. The availability and use of these techniques have raised many practical, moral and legal questions. Cases, where a person is living because he or she is attached to a "machine", have received wide notoriety. Today, many people are concerned with the costs-both human and financial-of the use, nonuse, and termination of the use of both ordinary or advanced life-sustaining techniques. It has been argued that sometimes the prolongation of life results in a mere existence or even torture.

Concern for these and associated issues such as the burden and potential liability that is placed on the family and the medical providers to make and implement life and death decisions lead to the development of various legal devices. Among these devices are the "durable powers of attorney for health care" and the "living will."

The durable powers of attorney for health care authorize another person (the attorney-in-fact) to make health care decisions for the principal. The principal-knowing that at some time in the future he or she may not, on a temporary or permanent basis, be able to make important and even critical decisions on health care-formally gives that power to another. The principal can give the attorney-in-fact directives on what the attorney-in-fact should do. While the attorney-in-fact may be given full power, the law imposes certain restrictions.

In summary, a durable powers of attorney for health care: (1) may be executed by a competent adult; (2) must be signed by the principal (the maker) and dated; (3) must be witnessed by two disinterested and legally competent witnesses; or acknowledged before a notary public; (4) the witnesses must sign the document and attest that the principal appears to be of sound mind and not under or subject to duress, fraud, or undue influence.

A durable powers of attorney for health care becomes effective when the principal's attending physician determines that the principal has lost the capacity to make informed health care decisions.

The living will is the maker's (declarant's) own statement of the kind and extent of treatment which should be given when the declarant is no longer able to make a decision as to withholding or withdrawal or use or continuation of life-sustaining treatment. The living will does not appoint another to make the decisions; it states the declarant's own choices. The declarant can state that the living will is applicable when the declarant is in a "terminal condition," "permanently unconscious state," or both. (The law defines these and other important terms.) As with the durable powers of attorney for health care, a living will has certain limitations.

A living will becomes operative when: (1) the attending physician and a second physician determine that the declarant is in a terminal condition or a permanently unconscious state; and (2) the attending physician determines that the declarant is not able to make informed decisions regarding life-sustaining treatment, and there is no reasonable possibility that the declarant will regain the capacity to make informed decisions. Where the declarant is in a permanently unconscious state, the second physician must be a specialist.

In summary, a living will may be executed by any competent adult and the formalities of executing it are the same as those of a durable powers of attorney for health care.

Anyone interested in a durable powers of attorney for health care or a living will should review the forms which were jointly developed by the Ohio State Medical Association and the Ohio State Bar Association. The forms conform to the the law and are available from either association. Please note that the forms are designed for general use. A person would be well advised to contact an attorney if that person finds that the forms are unclear or do not address particular concerns.

Disclaimer: Articles appearing on this website are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Reprinted and distributed by Fanger & Davidson LLC with permission from the Ohio State Bar Foundation as a service to our clients and friends. Excerpted from The Law And You, A Handbook of General and Everyday Law Affecting Ohio Citizens. Prepared for the Ohio State Bar Association by the Ohio State Bar Foundation. Copyright © 1997-1999 Ohio State Bar Association. All rights reserved.