If you were being kept alive artificially after becoming mentally and physically incapacitated permanently, would you like your loved ones to be able to make decisions for you? Would you like the artificial life support to be withheld or withdrawn so that you are able to die with dignity and let God’s will be done? Would you like to avoid a public guardianship proceeding in probate court?
If the answer to any of these questions is yes, you can do something about it. In most instances, with a properly drafted power of attorney for health care, which is also called a designation of patient advocate, you can avoid a probate court guardianship and have the persons you choose be able to make your end-of-life decisions.
One major end-of-life decision is when to pull the plug. However, for your wishes to be followed, you must specifically express in a clear and convincing manner in your power of attorney for health care, that your patient advocate can make decisions to withhold or withdraw artificial life support treatment that could or would lead to your death. These instructions are called living will provisions. However, they are known by other different names such as medical directives, advance directives or advance medical directives.
47 states are living will states in which these provisions are included in a separate document called a living will. Since Michigan is not a living will state, these living will provisions are typically included in your durable power of attorney for health care. However, you may still want to also include these instructions in a separate living will to have with you when you are travelling in living will states such as Florida or Arizona.
Without your clear written instructions, multiple family members may end up petitioning the probate court to make your medical and mental healthcare decisions. Oftentimes, these parties do not agree. Do you remember the Terry Schiavo case in Florida over a decade ago in which the family battled for some fifteen years over the decision to pull the plug? Would you like that to be you and your family? Whatever your position on the use of life support, now, while you are alive and well, is the time to say what you want.
There is a wide spectrum of directives that you can have regarding end-of-life treatment. On one end of the spectrum, you could say: “Keep me alive no matter what, even if I am a complete vegetable.” I’ve had only five persons in 31 years request to be kept alive under any and all circumstances.
On the other end of the spectrum, would be a no code or do not resuscitate (DNR) request. With a DNR, you direct that you do not want to have any type of resuscitation under any circumstances. Even if you have a minor heart attack and/or you stop breathing, you want no resuscitation. In our practice, the persons who typically have a DNR request either already have some debilitating or terminal illness or disease, or are at an advanced age such as the upper 80’s or above.
Early in my career, the first healthy person to request a DNR was 94 years old. He needed no assistance, not even a cane. He still drove and did his own grocery shopping, cooking, cleaning and laundry. When I asked him, “Why do want a DNR when you are perfectly healthy?” He responded, “I’m 94 years old! I have seen what happens when they do CPR on someone my age. They break all the ribs, which may or may not heal, and you’re in pain for years. I do not want that happening to me.” Lucky for him, he died quietly in his sleep.
Medical professionals who have done CPR on the elderly have told me that as the ribs are breaking, it sounds like a big zipper un-zipping.
Most people, including me and my wife Emily, are at neither end of the spectrum, but in the middle of the road. We only want artificial means of life support to be withheld or withdrawn if we are in an irreversible coma, are in a persistent vegetative state, are terminally ill and artificial means only prolong the dying process or where the burdens of treatment outweigh the benefits.
You can have almost unlimited variations. Some people may not want life support removed unless they have been in one of the above situations more than six months. Whatever your wishes, as long as they are set forth in a clear and convincing manner, you could put down just about anything that you want.
I have had dialysis patients who have requested that upon their permanent mental disability, that the dialysis be discontinued, knowing full well that without dialysis, their body would not last but a few days.
I have had cancer survivors who have indicated that in the event of a cancer recurrence during their mental disability, they do not want their body to be put through chemotherapy again. It’s all up to you. You have the right to determine your own fate.
You also should indicate in your living will provisions what you consider “artificial means”. Is receiving food and water through tubes or breathing with the aid of a machine considered artificial to you? What about CPR or dialysis? You decide.
I have many people ask me how they can be assured that their wishes are going to be followed by the hospital or other medical care provider. Fortunately, in Michigan, the courts have made decisions that raise the comfort level that your final wishes are going to be followed. The possibility of a multi-million dollar verdict against a hospital which keeps you alive contrary to your written wishes is a strong incentive to follow your final directives.
So if you would you like your loved ones to be able to make decisions for you after you become permanently mentally and physically incapacitated, and have them be able to withhold or withdraw artificial life support and avoid a public guardianship proceeding in probate court, then write it down in a properly drafted power of attorney for health care.
By Matthew M. Wallace, CPA, JD
Published edited July 23, 2017 in The Times Herald newspaper Port Huron, Michigan as: When do you pull the plug?