Living Wills, Part 1 – What State Am I In?
The Living Will (a.k.a. the Advance Directive, End of Life Directive) is a relatively straightforward document, yet it is the one document we spend the most time discussing when doing a person’s estate plan. The question is deceptively simple – if you are in a “Persistent Vegetative State” or “Terminal Condition”, how long do you want to remain on life support?
But, before you can answer that question, you have to understand what “Persistent Vegetative State” and “Terminal Condition” means:
1. Persistent Vegetative State in Colorado is defined as: A medical state in which an attending physician and another doctor, qualified to make such diagnosis, agree that within a reasonable degree of medical probability the patient can no longer think, feel anything, knowingly move, or be aware of being alive. The physicians must agree this condition will last indefinitely without hope for improvement and have monitored the patient long enough to make that decision. “Persistent Vegetative State” is defined by reference to the criteria and definitions employed by prevailing community medical standards of practice, and not by the definition above.
2. Terminal Condition in Colorado is defined as: An incurable or irreversible condition for which the administration of life sustaining procedures will serve only to postpone the moment of death.
While those are the legal definitions, I find it helpful to break it down further for my clients as follows:
1. “Persistent Vegetative State” is a circumstance where two doctors certify that you have no measurable brain function beyond basic brain stem function (i.e. involuntary breathing and heartbeat). I once explained this (in that way) to a client who happened to be an ER doctor. After nodding in agreement (which blew me away because I thought he was going to lecture me about how badly I had botched the explanation and simplified it too much), he added that the doctors perform some 67 different brain function tests and failure of all of those tests will result in certification/determination of a persistent vegetative state.
2. “Terminal Condition” is a bit more straightforward, really. If two doctors determine that whatever condition brought you to be on life support is incurable and/or irreversible and life support is only postponing the moment of death. The important thing about understanding “Terminal Condition”, as it pertains to the Living Will, is that it is not the same as having a “terminal condition” of say terminal cancer, etc. Rather, a “Terminal Condition” subject to a Living Will can be understood more easily as an imminent terminal condition, not just any condition that will eventually kill you.
Finally, you also have to understand that for purposes of removing life support in accordance with your directives in a Living Will it assumed that you are incapacitated (i.e. that you cannot make decisions for yourself or communicate those decisions). There are rare instances where a person is on life support but also has capacity to decide and/or communicate their decisions. I have seen it.
Once you know what state you are in and what that means, you will have a better understanding of how to determine when and/or if to remove life support. Look for the next part of this blog series on Living Wills!