Living Wills and Powers of Attorney

January 20, 2010 W. R. Eilers No Comments

In the years following big press for the Terry Schiavo case, many have rushed to protect their families and themselves from controversial life or death situations. People have flocked to the Legal Zooms of the internet or contacted their attorney to have living wills filled out and drafted up. I, myself, have measured and balances the of the pseudo comfort and absoluteness of making such a bold statement of regarding the unthinkable decision making that has to occur in these situations. 

It is an incredibly difficult scenario to conjure while considering that you know it will have resolution in the eyes of the law, regardless of your political or moral stance on the issues of euthanasia, death, and incapacity. This is exactly why the boom of living wills and powers of attorney has taken off. People are not confident in the legal or medical definitions of incapacity will align with their own moral compass. It is for this very reason that living wills and powers of attorney are a unique and empowering documents. They allow persons to take control of situations that are seemingly in the hands of “professionals” that may not share your concepts of virtue. The problem with these documents, however, is lack of certainty that actually remains after someone has signed their living will or power of attorney. Given the severity of any situation where someone would use one of these documents, it is imperative that you understand the power of your signature and what consequences may arise from your actions.

Basic Difference

The first step in taking on this task is understanding, at a basic level, what the differences are between a living will and a power of attorney. At the most simple comparison, a living will is your instructions for end of life situations to medical and sometimes legal professionals who have control of your life sustaining equipment, medication, etc., while a power of attorney is a document giving someone else the power to make decisions for you in this regard. Once you understand this basic distinction, you can move on to ask the more pertinent questions.

Who

The most important question to ask yourself is to whom will you be giving such power? Understand that with a living will, you are retaining the power through the interpretation of attorneys and doctors. With powers of attorney, you have to remember that the person you are empowering should not be simply someone you love or someone for whom you care deeply. The legal action that is occurring is essence a stand-in for your own judgment, and so this person should be someone who resembles your thought processes and general concepts of life. Without getting down and dirty with the psychology these decisions, understand that this may not be a partner or a best friend. It may be a brother or a sister who, although despite living a completely different life, is more in tune with your crisis thinking and your views of the world. Probably the best way to find this person is to have the discussion with your friends and family. Usually, we know in our hearts who that person should be. Having this discussion is also incredibly important for introducing the idea to your potential decider. Although people the world over assign duties and responsibilities to unsuspecting friends and family, as a concept of courtesy and respect, you should never force any life deciding responsibility onto another person, simply because you think “they’ll make the right decision.”

Understanding the Definitions

I have no intention of going into the details of the medical definition of incapacity. That being said, if you are considering a Living Will or Power of Attorney, you should do your research. Medical definitions of incapacity and death differ from legal definitions which differ from religious definitions. (For a interesting discussion on the matter check out Radio Lab. Research modern life sustaining technology and what modern medicine is capable reviving. You should also know what the force of generic language in a legal document has under the US Court system. The hope is that you are comfortable enough to have a confident opinion and understanding about you decision.

Now Versus Later

Like all things related to end of life decisions, most people think that it is not something to worry about until you are “older.” This, my friends, is simply not true. The peculiarities of world, God’s will, or how ever you choose to view it, is rarely predictable. You don’t have to dwell on the thoughts, but you definitely should think about it. Later is when we make adjustments and amendments based on life’s changes. Now is when we take on the difficult task of beginning the process.

Speaking with Those Who Guide Us

As I said before, there are plenty of resources for downloading a quick living will or power of attorney. You fill out the form sign it, go to Kinkos and have it notarized and you have a living will. The problem is the uncertainty and lack of understanding. As Stephanie Kimbro points out, this is not real legal service.

Remember, the process must begin with questions. Start with your preacher, your rabbi, your Uncle Jack, your partner, but start a conversation to better understand how you feel about about your life and your concepts of death. Next, you should speak to your physician or neighbor who happens to be a physician. This will help you begin to bring moral concepts together with medical truths. And lastly, speak with an attorney. You want a document that represents your feelings and wishes drafted in legalese and you need to understand the ramification of making such a decision and present such a power to the legal system.

Advise, Family, Living Wills, Powers of Attorney

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