Living Wills – What State Am I In?

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? We will provide some insight into that question in Part 2.  But, before you can answer when, you have to understand what it means to be in a “Persistent Vegetative State” or “Terminal Condition”.

In Colorado, “Persistent Vegetative State” 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.

When you break it down, “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, he added that doctors must perform some 67 different brain function tests and failure of all of those tests will result in certification/determination of a persistent vegetative state.

On the other hand, in Colorado, “Terminal Condition” 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 a broader definition, “Terminal Condition” is a bit more straightforward.  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, then you are in a “Terminal Condition” for purposes of the Living Will.  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”, for purposes of invoking the Living Will, is much more imminent and acute, not just any condition that will eventually kill you.

Once you understand what circumstances constitute a “Persistent Vegetative State” and/or “Terminal Condition”, it is much easier to make a decision about the whether and/or when to remove life support, which we discuss in the next part of this blog series on Living Wills.