What are Advanced Directives? And Do I Need Them? (Part II)


Part 1

Who makes decisions for me if I don’t have a Health Care Power of Attorney?

There’s a pretty clear answer when it comes to end of life decision-making. The answer isn’t so clear when it comes to decision-making when you’re unable to make your wishes known but aren’t terminally ill or permanently unconscious.  

Ohio law gives us a list of people who can make end-of-life decisions for us. Your doctors will start at the top and go down the list until they find someone to make the decision:

1.      Your guardian (for minors and anyone over the age of 18 who has had a guardian appointed);

2.      Your spouse;

3.      A majority of your adult children;

4.      Your parents;

5.      A majority of your siblings; and

6.      The nearest adult who is related to you by blood or adoption.

As an example, if Marge’s doctors conclude that she’s terminally ill and can’t make her wishes known, they’ll start at the top of the list and work down. Marge doesn’t have a guardian, so they move to the next line. Likewise, she doesn’t have a spouse or children, and her parents died many years ago. Marge does have a brother and a sister that the Doctors are able to locate, and because both her brother and sister agree to remove life sustaining treatment, the Doctors will follow their wishes.

When can my family (or guardian) make a decision to remove life sustaining treatment?

Your family (using the list above) can remove life sustaining treatment if you’re terminally ill, can’t make your wishes known, and don’t have a Living Will. 

If you’re permanently unconscious, the situation is a little more complicated. Doctors can only end life sustaining treatment in that case if you’ve been permanently unconscious for a period of at least 12 months. You read that right. Under Ohio law you’re going to be kept alive for at least 12 months if you’re permanently unconscious, but not terminally ill, and didn’t sign a Health Care Power of Attorney. 

If you have a Living Will, you can be removed from life sustaining treatment if your physician and one other physician agree that you’re terminally ill or permanently unconscious. 

What does it mean to be terminally ill?

You're “terminally ill” if you have an “irreversible, incurable and untreatable condition caused by disease, illness or injury.”

What does it mean to be permanently unconscious?

You’re “permanently unconscious" if you have an irreversible condition in which you are permanently unaware of yourself and your surroundings. 

How do family members make a decision to remove life sustaining treatment if I don’t have a Living Will?

They must make the decision in writing.

What if all my children aren't immediately available to make a decision?

If you’re terminally ill or permanently unconscious and the decision whether to remove life sustaining treatment has fallen on your children, doctors must make “a good faith effort,” and use “reasonable diligence,” to notify all your children before removing life sustaining treatment. 

What if my family members disagree about my care?

It depends on the situation. By law, the hospital can defer to your Living Will if you are terminally ill or permanently unconscious. If you’re not in either state, and have a Health Care Power of Attorney, your doctors can defer to the judgment of your agent under your Health Care Power of Attorney. If you don’t have a Health Care Power of Attorney or Living Will, your doctor can follow the procedure outlined above for decision-making. 

Unfortunately, in the real world, hospitals often balk at following the wishes of one family member if another is dead set again the action—even if the family member is legally entitled to make a decision. Hospitals are very risk averse and once a person has passed away, there’s no fixing a mistake. For that reason, the hospital may decline to act, leaving family members to either reach agreement or petition a court to order the hospital to follow the instructions of the person with the legal right to make the decision.

Who makes medical decisions for me if I’m not terminally ill or permanently unconscious?

The law isn’t so clear about the list of people who can make medical decisions for you if you’re not terminally ill or permanently unconscious. 

The law states that the patient’s “natural or court-appointed guardian” may consent to a procedure if the patient cannot do so him or her self. If no there isn’t a guardian, because the patient isn’t incompetent and is over the age of 18. Medical treatment decisions can be made by the chief clinical officer and attending physician at the hospital, but Ohio law doesn’t give a list of family members who can consent to treatment. 

As a result, if you don’t have a healthcare power of attorney and can’t consent to a medical procedure yourself, you may end up having a stranger at the hospital (albeit a doctor) make decisions for you and not your family. 

That’s why we recommend everyone over the age of 18 have a Health Care Power of Attorney. College students who don’t have much in the way of assets may not seem like good candidates for estate planning, since they often have little need for a will. But without a Health Care Power of Attorney in place, even their parents may run into a brick wall when it comes to medical decision-making. Everyone from 18-118 should have a Medical Power of Attorney. 

If this has created a need to learn more about Advanced Directives and if you need them, give us a call and schedule a time to sit down with one of our attorneys for an honest, no-cost assessment. We can be reached at info@sovelaw.com or 937-985-1843.