2-7.
CRITERIA TO CONSIDER FOR INCOMPETENT ADULTS
a. Written Document or Living Will. Forty-four states have enacted "living will"
statutes. These are written directives by the patient for use in making health care
choices in the event that the patient should become incompetent. Having a living will is
no guarantee that a patient's advance directives will be followed. A recent study of 175
nursing home residents found that in about 25 percent of the cases, the patient's
instructions were not followed. The Army recognizes living wills and complies with them
where possible. But, the existence of such a will does not really change the attending
physician's responsibility to determine that the patient, in fact, meets the requirements
for withdrawal of life support. What the living will does is to provide evidence of the
patient's previously stated desires while he or she was competent to do so. If the family
does not wish the living will to be honored, the matter should be referred to the hospital
ethics committee.
LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE
Says Doron Weber, spokesperson for the National Council on Death and Dying
and the Society for the Right to Die, "The Supreme Court essentially gave
constitutional stature to living wills," by
its decision in
the Cruzan case (emphasis
added).5 There has been increased public interest in drawing up a living will since
that decision, because it enables you (while your are still competent) to specify
which treatments you would or would not want if you became irreversibly
incapacitated and dependent on life-sustaining treatment. The guidance that you
provide will increase the likelihood that your wishes are honored. It will also help
your family get through some tough decisions. Some living will forms simply refuse
all "heroic" treatment. But, it is best to list specific procedures you would or would
not want such as: cardiac resuscitation (Do Not Resuscitate [DNR] order),
withdrawal of life-sustaining treatment (a mechanical respirator or a feeding tube).
You can specify conditions, for example, withdrawal of life support for a terminal
condition, permanent vegetative state, or irreversible brain damage that makes one
unable to swallow, cessation of circulatory and respiratory functions (traditional
definition of death), or cessation of all functions of the entire brain, including the
brain stem. You can ask for painkillers or request to die at home. Though living
wills are not legally binding, 44 states have "right-to-die' laws, and often recognize
living wills as good evidence of intent (needed to apply the subjective standard of
refusal for incompetent adults). In some states, like New York and California, a
living will should be supported by a Durable Power of Attorney for Health Care.
This legally binding document enables the person you designate and a backup
(people who presumably understand your wishes) to make health care decisions
for you should you become incompetent.6 In Texas, the Natural Death Directive is
needed to supplement the living will and ensure the legal right to die.7
MD0067
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