In the previous article, we covered the Durable Power of Attorney (DPA), which allows you to appoint someone to take over your financial affairs should you become incompetent, even temporarily.
This week’s topic is the “Living Will”. A Living Will allows a person to express their choices for treatment in the event that they are “near death” or in a “permanently unconscious condition”. The Living Will is signed with all of the formalities of a Last Will and Testament, (i.e. in the presence of witnesses and a notary public/justice of the peace) The signed and witnessed Living Will is then placed in a person’s medical record, with his/her Primary Care Physician (PCP), as well as with any specialists.
Effective January 1, 2007, New Hampshire combined the Living Will and Durable Power of Attorney for Health Care (DPAHC) into one document called an “Advance Directive”. Previously, the Living Will and DPAHC were two entirely separate documents.* The second part of the New Hampshire Advance Directive is the Living Will.
Living Will laws around the country developed as a result of the 1975 Karen Quinlan case, in which her family fought to remove her respirator because she was in a “persistent vegetative state” **. New Hampshire enacted its first Living Will law in 1985, after a few failed attempts due to opposition from those concerned about “mercy killing” and “euthanasia”. Interestingly enough, Massachusetts is one of only a few states that do not recognize a Living Will, although attorneys routinely prepare them and advise their Massachusetts clients to sign them.
In 1991, the New Hampshire legislature updated the Living Will laws to include situations where persons are “permanently unconscious”. This change was prompted by the Nancy Cruzan case, where a young woman who was seriously injured in an automobile accident, and deemed by doctors to be “permanently unconscious”, had been kept alive by artificial nutrition; her family fought successfully in the Courts for the right to remove her feeding tube.
The 2007 Living Will form is more comprehensive than the earlier form. For example, the 2007 form specifies that the Living Will becomes effective if an incurable injury, disease, or illness causes “near death” or “a permanently unconscious state”. The prior form referred only to a “terminal condition”. Further, the 2007 form recognizes that an Advanced Registered Nurse Practitioner (ARNP) could also be one of the two medical personnel who certify that a person is either “near death” or in a “permanently unconscious state”.
The current (2007) New Hampshire Living Will form also specifies that only “natural ingestion” of food or fluids is permitted when a person is certified to be “near death”, or in a “permanently unconscious state”, unless the person chooses to allow artificial nutrition and hydration.
It is also significant that the 2007 form gives a person specific choices about whether or not, if a person is “near death” or “permanently unconscious”, to accept medically administered food and liquids, even if all other life-sustaining treatment is taken away.
The next questions are: “Do I need a Durable Power of Attorney For Health Care (DPAHC) if I have a Living Will? What are the differences?” I will answer those questions in the next article.
*Even though they are combined, you are not required to complete both sections of the Advance Directive
**Some historical information obtained from NH Practice Series, Wills, Trusts, and Gifts (DeGrandpre).