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Living Will and Durable Power of Attorney for Health Care Decisions

After seeing the problems that arose in cases like those of Nancy Cruzan and Karen Ann Quinlan, Ohio enacted legislation in 1991 providing for living wills and durable power of attorney for health care decisions. A living will allows Ohio residents to state their intentions regarding withholding or withdrawal of life-sustaining treatment when they are no longer competent and to have their declaration recognized by Ohio law. Even with a valid living will problems can arise as in the case of Terri Schiavo, but the living will is the best hope you have of eliminating those problems.

A living will becomes very useful when a patient is no longer capable of making informed decisions about medical care. It is the patient's wishes as expressed in the living will are communicated to the attending physician. The living will activates when the attending physician and one other physician determine that the patient is in a terminal condition and is incapable of making informed decisions. The living will must specifically authorize withdrawal or withholding of hydration and nutrition. However, the living will does not affect "comfort care" unless the patient can no longer feel pain. Then comfort care is no longer necessary. A living will may be revoked at any time and in any manner.

The physician has a duty to inform the patient if the facility or the physician cannot or will not comply with the patient's choices set forth in the living will. The physician or medical facility cannot interfere with transferring the patient to a facility that will comply with the patient's wishes. The attending physician must note in the patient's medical record that there is a living will. If a person does not have a living will, the statute sets out a priority of persons who can sign a consent to withdraw or withhold life sustaining treatment. The decision that is made for the patient must be consistent with that person's previously expressed intentions or which can be inferred from the person's life-style or character. The statute permits the use of preprinted forms for living wills. However, a layperson should be cautious about using those forms without advice from an attorney. In 2001, the standard form was revised to incorporate a standing "Do Not Resuscitate" order. A living will does not apply if a patient can make informed decisions, or if nutrition and hydration lend comfort to the patient. A living will has limited application if the individual is pregnant.

The Durable Power of Attorney for Health Care designates an Attorney in Fact to make health care decisions when the patient is unable to communicate his or her wishes. This document can relate to life termination and to health care decisions. The provisions regarding withdrawal or withholding of life support systems are the same as in a living will. If there should be both a living will and a health care power of attorney, then the living will takes precedence for life termination decisions. In such cases, the health care power of attorney allows the attorney in fact to make life-time care decisions like having access to and releasing medical records, employing and terminating health care personnel, and selecting health care facilities.

Power of Attorney for Business

A financial power of attorney is where you designate an attorney-in-fact of your choosing to handle your financial affairs on your behalf. Often, this is a spouse or other family member. The attorney-in-fact may then sign checks, tax returns, deeds, or conduct any other business that you have authorized. There are several different types of financial powers of attorney such as Durable vs. Non-Durable and General vs. Special.

A durable power of attorney is one that specifically states that it remains valid even after the person granting the power becomes incapacitated. This is what most people want because it helps avoid the necessity of having your family request the appointment of a guardian by the probate court. If the power of attorney does not include this language, the authority of the attorney-in-fact terminates upon your incapacity. This also makes it hard for the attorney-in-fact to use the power while you are still competent because the attorney-in-fact often will need to prove that you are still competent.

General powers of attorney need to be distinguished from special powers of attorney. Special powers of attorney relate to powers granted to someone to transact specific and identified business for you. For example, a special power of attorney may be granted for dealing with the IRS, to participate in a real estate closing, or for other specified business transactions. In contrast, a general power of attorney is granted to someone to conduct any and all business for you. As a practical matter, it is generally beneficial to include an all encompassing listing of powers granted to the attorney-in-fact due to certain court decisions. For example, if you are regularly making annual exclusion gifts to your children or regular charitable gifts and you want your attorney-in-fact to be able to continue the gifts on your behalf, you should know that the IRS has been successful in pulling gifts made by the attorney-in-fact back into the taxable estate of the decedent for estate tax purposes unless the gifting power was expressly stated in the power of attorney.

It is usually good to specify in the power of attorney that you want your attorney-in-fact to be your guardian if one is needed to avoid the time and expense of having to go through the probate court to get a guardian appointed.

To learn more, visit our Fayette office!
104 East Main Street P.O. Box 40
Fayette, OH 43521
(419) 237-2661

Ohio Lawyer
Ohio Lawyer