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Publish Date: 3/25/2005

Five wishes may deter nightmare


A Supreme Court decision, emergency legislation and a woman dying in a hospital while protesters try to sneak into her hospital room to give her water.

The high profile of the Terri Schiavo debate has dramatically increased public awareness about end-of-life issues.

And that awareness of a difficult topic is long overdue, according to lawyers in Colorado.

“Everybody over the age of 18 should think about this kind of situation,” said Wally Grant, a Longmont attorney who advises on estate planning, including wills.

Coloradans have three main legal options for detailing their wishes in the event they become incapacitated, each with advantages and disadvantages: living wills, power of attorney or a “five wishes document.”

“The Schiavo case is a good example where young people are just as apt to have the need for a living will as an older person,” Grant said.

A living will allows a person who is terminally ill or unable to make a decision or communicate medical decisions to request that artificial life-sustaining procedures be withheld or withdrawn.

But a living will is not 100 percent binding.

In Colorado, a living will is effective only when two physicians certify that a patient is terminally ill and that he or she has been unconscious, comatose or otherwise unable to make or communicate decisions regarding care for at least seven days.

“Physicians are not eager to sign these,” said Carl Glatstein, a Denver lawyer specializing in elder law. “Doctors are very reluctant to say whether or not a person is terminal.”

Power of attorney is more legally binding, but the document must specifically address medical treatment.

Through power of attorney, one person gives another person the authority to act for them for the purposes stated in the document.

“A person must address health-care issues in these,” Grant said. “That’s why I tell everyone to do both. Write a living will and grant power of attorney.”

The five wishes document combines living wills and power of attorney with more personal and detailed expressions, such as how to handle directives for CPR.

Written with the help of the American Bar Association’s Commission on the Legal Problems of the Elderly, the five wishes document addresses who will make health-care decisions and what kinds of medical treatments the person wants under various conditions.

Dr. Mark Yarborough, director of the Center of Bioethics and Humanities at the University of Colorado Health Sciences Center, said Colorado law spells out the process doctors must follow when people can’t make their own medical decision and haven’t left a directive such as a living will.

“A doctor must make a reasonable effort to identify interested parties and have them meet to select a spokesperson,” he said.

Yarborough said the selection is based on who is most familiar with the incapacitated person and his or her values and previously stated wishes.

“That person doesn’t just get to make any decision they want,” he said. “They have a legal and ethical responsibility to make a decision that best reflects the prior decisions of the person or that most comports with their values.”

All three experts emphasize the need to communicate health-care wishes with family.

“When a family and spouse disagree on a patient’s care, that’s when things get tough,” Grant said. “That’s why living wills and power of attorneys are so important.”

Glatstein said conversations on the topic of life-prolonging measures are an important step, but the definitive action to take is to write down decisions.

“The courts are ecstatic to have a document in writing,” he said. “But be sure to communicate this. Don’t keep it a secret. It doesn’t do us any good if it’s hidden in your glove compartment and nobody can find it.”

 

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