What are Medical Advance Directives and what is the difference between a Living Trust and Living Will?
Medical Advance Directives are legal documents to advise medical treatment providers and others of your desires concerning medical treatment in the event you are no longer able to speak for yourself. The term “Medical Advance Directive” typically refers to a Living Will, but the term may also include medical durable powers of attorney, cardiopulmonary resuscitation (CPR) directives, Do Not Resuscitate (DNR) orders, Medical Orders for Scope of Treatment (MOST) and other directives regarding your care and disposition in the event you have a terminal medical condition, and at or after your passing.
In Colorado, a Living Will is known as an “Advanced Directive for Medical/Surgical Treatment”. It is a document regarding your directives as to how you wish to be treated in the event you have a terminal condition which is not curable or reversible, or you are in a persistent vegetative state (i.e. “brain dead”) and you have become incapable of speaking for yourself. A Living Will is a nickname, in that it is signed with the same formalities as your separate Will, meaning that it is signed in front of two witnesses who do not inherit from you, and a Notary.
A Living Will covers two end-of-life situations. The first is a terminal condition which means an incurable or irreversible condition for which the use of life-sustaining procedures will serve only to postpone the time of death. The second is a persistent vegetative state. Colorado law recognizes that the determination of whether a person is in such a state should be made by medical professionals, as a result of which the term is not defined in the law, except to say that determination is based upon prevailing medical standards.
In either of these two end-of-life situations, a Colorado Living Will allows the individual to select one of three choices. The first is to forego life-sustaining treatment. The second is to accept life-sustaining treatment, but only for a limited time. The third choice is to continue life-sustaining treatment so long as medically feasible.
The law also permits a person to express individual medical instructions and to list others with whom the person’s doctor may discuss the person’s medical situation in light of the privacy requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). These instructions are also often included in a medical durable power of attorney.
Federal law requires that, upon admission to a hospital, the hospital must ask if you have a Living Will. Thus, you should bring your Living Will and any medical power of attorney documents with you at the time of admission and let the hospital make a copy. If you enter an assisted living facility, you should also provide a copy of your Living Will and power of attorney documents at the time of admission.
So long as you are capable of making your own medical decisions, you can determine what treatments to receive. The purpose of the Living Will is to allow you to express in advance what your directives are, so that in the event you are unable to communicate at a later time, there is a written document telling the treatment providers and your family of your preferences on the subject of end-of-life treatment regarding terminal illness and persistent vegetative state situations.
Typical, useful estate plan documents include a Medical Durable Power of Attorney, Living Will, Financial or General Power of Attorney and a Will or a Pour-Over Will with a Revocable Living Trust.
A Living Will is separate from the Colorado medical aid in dying law, under the Colorado End-Of-Life Options Act, which will be the subject of another Article.
Selected information in this column has been taken with permission by Continuing Legal Education in Colorado, Inc., from the Colorado Senior Law Handbook, (Chapter 24: Medical Advance Directives, Michael A. Kirtland, Esq.), which is a copyrighted publication and may be accessed and downloaded for free at: www.cobar.org/For-the-Public/Senior-Law-Handbook.
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