Living Wills and Healthcare Powers of Attorney are a source of much confusion. Commonly referred to as "advance directives" these tools give you the power to control how medical treatment is provided if you are unable to speak on your own behalf, either as a result of a temporary condition, or as a result of a terminal condition or a permanently unconscious state.
Living Wills are frequently confused with Last Wills and Testaments and Living Trusts. Both of these documents deal with providing instructions regarding the transfer of assets; a Living Will has nothing to do with your assets. Another common misconception is that the document sets forth your wishes regarding burial, etc. Neither of these situations are dealt with by the Living Will, it is a limited document that outlines the medical care that you desire when you are not able to speak on your own behalf.
Having your wishes clearly identified is one part of the equation, having an advocate to speak on your behalf is the other part. That part is taken care of by having a properly executed Power of Attorney for Health Care. This document is also frequently confused with General powers of attorney (sometimes referred to as Durable Powers of Attorney, or Financial Powers of Attorney). The Health Care Power of Attorney is a limited purpose power of attorney that specifically empowers your chosen advocate to be able to speak on your behalf with regard to health care issues. Among the powers given to this person are the powers to advocate on your behalf if they believe that the medical facility has determined that you are in a terminal condition or a permanently unconscious state in error.
Living Wills and Powers of Attorney for Health Care are a foundational cornerstone of your estate planning. There is a complex and time and money consuming process that must be followed if the directives are not executed and your family must deal with you being in a terminal condition or a permanently unconscious state or there is a dispute over your wishes.
What exactly constitutes a "Terminal Condition" or a "Permanently Unconscious State"? The terms are defined in O.R.C. 1331.11 as follows:
(V) "Permanently unconscious state" means a state of permanent unconsciousness in a principal that, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by the principal's attending physician and one other physician who has examined the principal, is characterized by both of the following:
(1) Irreversible unawareness of one's being and environment.
(2) Total loss of cerebral cortical functioning, resulting in the principal having no capacity to experience pain or suffering.
(BB) "Terminal condition" means an irreversible, incurable, and untreatable condition caused by disease, illness, or injury from which, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by a principal's attending physician and one other physician who has examined the principal, both of the following apply:
(1) There can be no recovery.
(2) Death is likely to occur within a relatively short time if life-sustaining treatment is not administered.
One trap for the unwary, the documents need to either be executed in front of a notary or in front of 2 disinterested parties. The fact that the parties must be disinterested eliminates any person that is related to the person signing the documents by virtue of blood, marriage, adoption, is the person named as a power of attorney, or is the attending physician, or administrator of a nursing home where the person resides.