Like in most things, necessity is the mother of invention. “Living wills” were first proposed by individuals who were unable to enforce medical directives through a Power of Attorney. In the 1960s and 70s, legislation was being introduced in Florida and California to give legal enforcement to living wills that
It wasn’t until 1976 that California became the first state in the nation to legally sanction living wills. After California took that first step, 43 other states also made the leap within a year. In 1976, the New Jersey Supreme Court was the first Court to validate living wills in IN THE MATTER OF KAREN QUINLAN, AN ALLEGED INCOMPETENT, 70 N.J. 10 (1976).
In 1991, the federal Patient Self-Determination Act was passed, which validates the existence of advance directives in the states. The Act requires that all hospitals that receive Medicaid or Medicare funding must determine whether a patient has or wishes to have a living will. At some point since the 1970s, the preferred term for a living will became the advanced directive or the health care directive.
Today, less than 20% of Americans have a health care directive. That means 4 in 5 people have not made medical decisions for the benefit of themselves or their family. It’s kind of like if you took your car to the mechanic and said, “Yeah, fix it,” and that was is. And then you left it up to your friend or a family member to make decisions for your car. What sort of shape do you think your car will be in when it returns to you? What do you think your bill will look like? Why do we do this for our bodies?
How Are Directives Helpful?
Health care directives become active when a person is not able to communicate their own health care decisions. This doesn’t mean that you are conscious and can speak. This means that you are mentally incapable of understanding what is happening, unable to make a determination on a course of action, and unable to communicate that determination to a profession.
Common situations where this occurs:
- Persistent vegetative state;
- Severe brain injury;
- Advanced Alzheimer’s disease or dementia;
- Critical medical illness impacting mental capacity.
The reason that these are called Advanced Health Care Directives is that you are making decisions today regarding future medical care, i.e., you are making health care decisions in advance of needing them.
A health care directive is not so specific that it will list all acceptable treatments to situations. A well-written directive is a communication focused on the goal of communicating your health care preferences. The directive should spell out your overall goals of care to enable your physician and your appointed health care representative to make decisions consistent with your overall goals while relieving the physician and your representative from the angst of wondering what you’d want.
Common Health Care Goals
When preparing a health care directive, many people have similar goals, and the one we most often hear is, “I just don’t want to suffer,” or “I want to be surrounded by my family.” The unfortunate truth is that over 80% of Americans are currently dying in medical facilities, not surrounded by their families.
Here are a few common requests that we see:
- I don’t want to be a mental, physical, or financial burden on my family;
- I don’t want to be in pain;
- If I’m pregnant, I want my unborn child to be born if viable;
- I don’t want to be a vegetable;
Here are a few uncommon requests:
- I don’t want blood transfusions;
- I want you to make all efforts to prolong and preserve my life;
- I don’t want you to make any efforts to prolong my life;
Some of these more uncommon ones depend on age. The younger the person creating their advanced directive, the more they opt for any and all reasonable efforts to prolong their life. The older a person is, the less likely they want to receive such medical care. This is anecdotal; however, it seems to fit with what you’d expect from a younger or an older person receiving medical treatment.
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Let's talk about how you can make sure your medical wishes and decisions are followed, even when you're not able to tell those you love what you want.