End of life considerations

Although we should not spend our days focusing on death, it is something we must think about.  Not so much for ourselves, but for our loved ones.  Freak accidents can, and do, happen everyday and everywhere.  Unforeseen illness or disease may strike at any time regardless of how well we care for our bodies.  During those times the people we care for most are under an extreme amount of stress.  Although nothing could ever eliminate that stress, a little planning now can reduce it. 

Among the things that you can do today to help your loved ones tomorrow is prepare advance directives that let them know your wishes regarding your health care in the event that you cannot make your own decisions.  Two directives that you can prepare are a “living will” and a “life prolonging procedures declaration”.  They are different, but both give you some control over your health care if you are unable to communicate your wishes at the time.  Possibly just as important, they allow you to convey your wishes to family and friends if a tragic accident or unforeseen illness strikes.  Another thing that you can do now to gain some control over your end of life matters is to appoint a trusted loved one to act as your “health care representative”.

Of course, these documents do not guarantee that problems will not arise.  However, knowing that you have directives prepared will give you the peace of mind that your loved ones will have some guidance from you if they are faced with the prospect of whether life support should be withdrawn or withheld.

We have all seen the Terry Schiavo case splashed across the news and heard or experienced heart wrenching stories about friends or family faced with the decision about whether to withdraw or withhold life support when a family member is dying and only a machine can keep them alive.  Regardless of whether you want every possible method used to sustain your life or whether you would like to go quickly, giving your loved ones direction regarding your wishes will make their painful decisions easier and less stressful.

There are different kinds of advance directives.  Some are described in a little more detail below.  To decide which directive might be right for you, contact me today.

What is a Living Will?

A living will is a declaration that you make today about your wishes regarding the use of artificial means to prolong your life when death is likely and relatively imminent.  Before your directions can be carried out a doctor must determine, in writing, three things: (1) that you have an incurable injury, disease, or illness; (2) that your death will occur within a short time; and (3) that the use of life prolonging procedures would serve only to artificially prolong the dying process.  If a doctor decides that all three elements are present and you have prepared a living will,  no further steps should be taken to stop the dying process.  By signing a living will you are not telling the doctors to stop caring for you.  Instead, your living will should direct your health care providers to continue to administer the necessary treatment to provide comfort and alleviate your pain.

Indiana law requires that as part of your declaration you must chose one of three options regarding “artificially supplied nutrition and hydration”.  Those options are whether you: (1) wish to receive artificially supplied nutrition and hydration; (2) do not wish to receive artificially supplied nutrition and hydration, if the effort to sustain life is futile or excessively burdensome; or (3) intend to make no decision at all regarding artificial food and hydration and wish to leave that decision to your duly appointed health care representative.

What if I want to receive all the care that medical technology can provide?

Indiana law provides a procedure that allows you to give your health care provider and loved ones directions regarding that desire also.  As opposed to a living will you can sign a “life prolonging procedures declaration”.  Such a declaration would provide that in the event you were suffering from a condition in which death was imminent and from which there can be no recovery without life prolonging procedures, your health care providers would be directed to provide whatever services possible to extend your life. Such a declaration should include a provision that provides that you want all appropriate nutrition and hydration, as well as all other medical care necessary to extend your life, provide you with comfort and/or alleviate your pain.

What is a health care representative?

It is a person that you designate to act on your behalf and make health care decisions for you.  One of the great things about a health care representative is that you decide who makes the decisions on your behalf and how much authority that person is granted.  A health care representative can be designated to make decisions for you when you are simply unconscious or they can be designated to decide whether certain procedures should be withdrawn or withheld when faced with life prolonging procedures. 

A health care representative should be chosen with care.  You should tell your family, close friends and health care providers about your appointment.  Failure to communicate this decision to your family and health care providers may cause hurt feelings and unnecessary confusion later when the appointed person begins to act on your behalf. 

Frequently Asked questions

OK, I have the documents what do I do now? 

If you have written advance directives, it is important that you give a copy to your health care providers. You should ask them to keep the directives in your medical chart. If you are admitted to the hospital, your doctor can put notations in your chart regarding the existence of health care directives so any provider reviewing your chart will have that information available to them.

Additionally, you should give copies to your health care representative, family members, close friends, attorney and possibly your clergy.  If you choose not to give a copy to the above individuals, make sure that you communicate your decisions to them.  Be sure to tell your family and close friends where your advance directives are located.  Also, you may want to include a small card in your purse or wallet to indicate you have prepared an

advance care directive, where it is located and who to contact for a copy of the same.

Isn’t communicating my desire to my doctor enough?

Maybe or maybe not.  A doctor can only follow your wishes if they know what those wishes are.  If you are being treated by a doctor other than your own, that doctor is unlikely to know your wishes in the event that you cannot communicate.  Also, if your wishes are only verbalized to your doctor, then confusion may occur if a family member does not believe the doctor is following your wishes.  By providing your health care providers and family with advance directives you are reducing the chance for confusion and consternation later.

What is HIPAA?

HIPAA is a federal law intended to protect the privacy of your medical information.  Of course, like many federal regulations it is long and very complicated.  Although preparing directives may not avoid pesky hospital administrators from trying to prevent your family access to information regarding your treatment, a properly appointed health care representative may avoid the problems that your family and friends would likely encounter without one.

What if I do not appoint a healthcare representative or otherwise prepare advance care directives?

If you are unable to consent to health care and have not appointed anyone as a health care representative or otherwise executed an advance care directive, then the Indiana law provides a criteria to determine who can make decisions for you.  Generally, if a close family member is present then the decision is left to them.  Essentially, without direction otherwise, decisions regarding your health care may be left to whatever family member the doctor can contact. 

Can I change my mind later?

Assuming you are competent, yes.  It depends on the document, but generally all you have to do is revoke the previous advance care directive.  Of course anytime that you make that decision you should notify everyone that you contacted initially to avoid confusion.

Who can create an advance care directive?

The formalities vary between directives, but generally anyone competent and 18 years of age or older.

If I execute a living will, can my life insurance company refuse payment under a suicide exclusion provision?

Indiana law specifically provides that the withdrawal or withholding of life support pursuant to a living will declaration does not constitute a suicide.  Regardless of what an insurance policy provides, the policy is not legally impaired or invalidated by the withholding or withdrawal of life prolonging procedures from an insured qualified patient. 

What about organ donation?

Giving your organs to a person that can use them when you no longer can is the ultimate gift.  Like all other directives it is important to make your wishes concerning organ donation clear to your family, close friends and health care providers.  You can add language to any of your other health care directives to indicate your desire regarding organ donation.  Another important step you can take is to notify the Department of Motor Vehicles when you renew your drivers license.

Can I prepare a Do not Resuscitate without being admitted to the hospital?

Yes, however, the formalities of this directive are confusing and tricky and should not be prepared without the assistance of a professional.

What if I do not want someone to make decisions regarding my health care?

You can execute a directive to indicate that you do not want a particular person to make health care decisions for you.  If you think it is necessary to disqualify someone from making your health care decisions, directly inform that person.  As with all advance directives you should be sure to inform family, close friends and all of your health care providers of this decision.

What if I move out of state are my directives still effective?

That depends on the state you move to.  You should contact an attorney in that state to discuss that state’s law.


For additional information email info@kwernerlaw.com or call (219) 226-0590.