The Will To Live

With the many miracles of modern medicine, the situation increasingly arises where people are incapacitated for extended period of times but doctors continue to work and are hopeful that the person will recover. If one cannot recover, there often can be a lengthy period during which a person is still alive but has lost the capacity to make decisions. Examples of these situations are deteriorating mental capacity, comas, and brain injuries.

Regardless of the scenario, the most complete estate plan includes arrangements to deal with incapacity should that occur. A person must take into consideration many similar things as when they are drafting their will, but need to consider (and hope for) the possibility that they will regain capacity. This includes the personal wishes regarding health care and extraordinary measures.

Health Care

Most of us have seen a TV episode or a movie that includes the topic of incapacitation and health care -- the infamous question of whether to pull the plug. Modern medicine discovers ways every day to fight death, cure disease, and prolong life. With these advancements in technology and medicine come huge financial and ethical dilemmas. Is it right to keep someone on life support when seemingly all hope is lost? Will the miracle occur and someone wake up from the coma? Could the breakthrough happen tomorrow that can cure the terminal cancer? When people and families face death head on, these often are their questions and thoughts. If a person has done a thorough estate plan, then there should be something in place to clearly show his or her wishes with respect to health care, particularly with regard to deciding before a medical disaster to “pull the plug” and end life.

A Living Will is a document used to state an individual’s health care wishes. This document directs family and doctors how to proceed regarding extraordinary treatment and especially what is to be done when there is no reasonable expectation of recovery. Living wills are heavily regulated by state statutes so an attorney in putting them together has to be extra careful to be sure to adhere to the laws. In Maryland, living wills are part of what is called an Advance Directive. If you don’t put your wishes on paper, then making decisions on these matters becomes the responsibility of random family members, doctors, or even judges, all of whom may not know what you want. In Maryland, you create two documents. One describes the person you entrust with decisions in a durable power of attorney for health care. The second is a living will, which breaks down all the medical treatment you want in specific situations. Together, they make up your advance [medical] directive.

The trouble with the living will is in predicting every scenario. Questions will often arise for those treatments or situations that do not fit perfectly into what was included and described in the living will. The durable power of attorney for health care decisions solves the difficulties faced with the living will. It allows you to solve those family arguments about who gets to make the call. A person selects the agent to represent themselves when they become incapacitated. This could be cause for concern when you have to chose between family members but it is important that you focus on selecting someone you trust and who you know will respect what you have told them. This person can take all the information you give them and use it to make the best possible decisions in those situations which are not specifically stated in the living will.

Planning for health care matters when you are living is just as important as planning for what happens to your estate after death. It is important when drafting these documents that you are honest with yourself and with your attorney. You also should put great thought into who you want to act as your “agent”, the person who will be making decisions for you. You should truly trust the person to understand your wishes and to act accordingly. It is hard for some people to let go of loved ones, and while modern medicine continues to advance, you want to make sure your agent respects your wishes regarding “being alive” versus “living” as they often have two different meanings in these situations.

Fred Antenberg is a Maryland attorney who can help plan for your estate in life and death. CONTACT him to discuss your plans during a FREE Consultation at 410-730-4404.