Can You Live Without a Living Will? Ask an Elder Law Attorney

By: Raley L. Wiggins | Attorney at Law | Red Oak Legal, PC Can You Live Without a Living Will?

Even among lawyers, there is a lot of confusion regarding which documents clients need when it comes to health care decision making. Adding to the confusion is the fact that the names of many of these documents—Living Wills, Advance Directives, Do Not Resuscitate Orders, Healthcare Proxies, and Healthcare Powers of Attorney—are often (incorrectly) used interchangeably.

documents in turn to try and clear up some of the confusion.

Let’s start with a Power of Attorney. A power of attorney (“POA”) is any document in which a principal grants an agent the authority to legally act on behalf of the principal. For example, Joe Q. Client (the principal) may give his wife, Jane T. Client (his agent), power of attorney to handle business and financial affairs on his behalf. The POA Joe gave to Jane in this case is probably drafted very broadly to give Jane a lot of authority.

On the other hand, you may have executed a very limited POA if you have ever traded in a car to a dealership. The dealership will typically have you sign a POA that gives it the limited authority to sign any paperwork necessary to transfer title to your trade-in when they sell it to the next buyer.

But, POA’s aren’t just for financial transactions. Depending upon how it is drafted, your POA may include provisions for making health care decisions as well. If the POA document authorizes your agent (sometimes called your “attorney-in-fact”) to make health care decisions, then your agent may also have the authority to act as your health care proxy as well. More on that below.

When it comes to granting an agent or proxy authority to make health care decisions, the law breaks down those decisions into two basic categories. The first category is end-of-life decision making, namely the decision to provide, withhold or withdraw life sustaining treatment or artificially provided food and water. The second category includes non-end-of-life A “Do Not Resuscitate Order” (commonly decisions, i.e. decisions that do not involve called a “DNR”) is also often confused withdrawing life sustaining treatment or with a living will. In a hospital setting, a artificially provided food and water. patient will typically receive resuscitation efforts (such as CPR) unless a physician has If you don’t appoint an agent pursuant to given a “no-code” or “do not resuscitate” your POA to make healthcare decisions order. But such an order is not effective if the patient is discharged Attend Free Workshop back into the Estate Planning and Asset Protection Workshop community.

So, I thought I would address each of these

Wednesday, September 23: Hosted by Red Oak Legal, PC: In that case, 1:30-3:30 pm at 322 Catoma Street downtown Montgomery. the patient This educational workshop presented by local attorney Raley must obtain a L. Wiggins covers wills, trusts, powers of attorney, advance special doctor’s directives, living wills, probate administration, protecting assets order called a DNAR (Do from creditors, bankruptcy, divorce and remarriage, nursing Not Attempt homes, long-term care and Medicaid qualification. Registration is Resuscitation) required. Call 334-625-6774 today to reserve your seat or register which must be online at www.redoaklegalpc.com. issued by the physician on a special form for you, then you may draft an Advance obtained from the Health Department. Directive. This is a document that appoints Unless the patient has a DNAR and is an agent, called a Health Care Proxy, to wearing a DNAR bracelet, an EMT is legally make decisions on your behalf. Unlike a required to attempt resuscitation. POA, a Health Care Proxy appointed in an Advance Directive is limited to making There are a number of issues regarding health care decisions only, and does health care decision making which must be not have any financial authority. Stated considered. Most people should have an differently, your agent under a POA may Advance Directive and Living Will as part of also qualify as a Health Care Proxy, but their ordinary estate planning documents. your Health Care Proxy appointed by an We also recommend a separate POA to Advance Directive does not qualify as your deal with financial decisions. Individuals financial Agent. faced with a terminal illness may also consider speaking to their physician about Finally, you may also have a Living a DNAR order as well, if appropriate. Will, which deals only with end-of-life decision making. Your Living Will may be Advance Directives and Living Wills do not a separate, stand-alone document, or it typically expire by the passage of time. may be incorporated into your Advance They may, however, get “stale.” This is not Directive. It states whether you want to a legal concern, but a practical one. For receive life sustaining treatment and/or example, health care providers may be artificially provided nutrition and hydration more hesitant to follow your wishes if they if you are faced with a terminal illness. are set forth in a 25 year old living will. As Terminal illness is defined as a situation a result, it’s wise to update them from time in which the patient’s death is imminent, to time to keep them “fresh.” or whose condition is hopeless unless the patient is artificially supported through the Raley L. Wiggins use of life-sustaining procedures, in the Attorney at Law, Red Oak Legal, PC opinion of a qualified physician. 334-239-3625 | info@redoaklegalpc.com 322 Catoma Street, Montgomery, AL 36104,

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Reopening of Caddell Sculpture Garden @ MMFA

The Montgomery Museum of Fine Arts (MMFA) announces the start of a phased reopening of the Museum. In this first phase, the Museum reopens the Caddell Sculpture Garden. MMFA members are invited for a first look August 4-9. The public is invited to visit the Sculpture Garden beginning Tuesday, August 11. -Visitors returning to the Caddell Sculpture Garden will encounter the first installations of the Museum’s second rotation of outdoor sculpture, all installed during the mid-March-July closure. The first to be installed was Patrick Dougherty’s Rough ‘n Tumble. For this work, the North Carolina-based artist found inspiration in the ancient pyramids of Nubia—located in the Nile Valley of present-day Sudan. The second work was Tuscaloosa-based artist Jamey Grimes’ Teraxacum, 2020. While most of this gigantic, aluminum dandelion sits atop the Sculpture Garden’s plinth, a number of the seeds seem to have been taken by a breeze that causes them to skitter across the length of the adjacent reflecting pool. The third and most recent installation is one by Karen LaMonte, an American artist now based in the Czech Republic. In her work now on view in the Garden, Reclining Nocturne 3, 2016, LaMonte sculpted a gown, suggestive of Greek or Roman antiquity, using the ever-changing nuances of rusting iron to articulate the graceful, diaphanous folds of the classical garment. The fourth and final new work on view Chance Meeting, a bronze and metal figural group by leading American sculptor George Segal. Segal’s sculptures sensitively portray life-sized figures in everyday encounters, often on city streets and connected to found objects from urban environments. For more info visit www.mmfa.org