Newland's Business Notes

Medical Directive = Living Will

Volume 6 Issue 5 -- September/October 2002

During the past 32 months, I have become a reluctant authority on Medical Directives; my knowledge being obtained during my mother’s long, and ultimately unsuccessful, bout with Parkinson=s Disease. 

Before modern medicine could keep dying individuals in a state of suspended animation for unreasonable periods, there was little thought about whether to prolong a loved one’s life when that individual was no longer physically or mentally capable of conveying his or her wishes.  Now, even without heroic measures such as mechanical breathing and intravenous feeding, life can be prolonged by newer medicines and procedures B hence, the need for guidance as to what medical procedures the patient would want if he or she were able communicate.

Why the term Medical Directive rather than Living Will?  Living Will” seems inappropriate because real Wills (Dead Wills?) are legally enforceable and dispose of the property of the decedent.  In Virginia, at least, Living Wills, by comparison, are not enforceable (neither are Medical Directives) and have nothing to do with the disposition of property.  Medical Directive” seems more appropriate because the real purpose is not to will anything, but to give direction as to what medical treatment the patient would want in certain situations. Note that the terminology as well as the legal requirements and effects for Medical Directives vary from state to state.

A Medical Directive may be in narrative form (describing, in generalities, the medical treatment desired) or it can be in the form of a checklist which presents specific choices on whether, for example, cardiopulmonary resuscitation is wanted or not.  Of course, both approaches are predicated on the individual not being able to make, or communicate, which medical choices are preferred at the time. 

In my law firm in Virginia, we use a simplified checklist.  Many clients who complete my Medical Directive check “no” to nearly all treatment choices except pain medication.   Does the completion of the form insure that the preferences of the Client will be followed?  No, it does not. 

The reason medical personnel cannot always follow Medical Directives is best illustrated by the situation with my Mother.  While ill, she began vomiting blood and was sent, by the nursing home, to the local hospital for treatment, against the wishes of her Medical Directive.  Could the facility be sued for sending her to the hospital?  Legally, no. 

Virginia laws do not permit legal enforcement of Medical Directives because such enforcement would essentially deprive doctors and staff from making medical decisions affecting not only the sick person, but the institution, other patients, and staff members.  Imagine allowing someone to vomit blood until they died because of the existence of a Medical Directive.  

Stated differently, in Virginia, Medical Directives are there for the guidance of the family and medical personnel.  Doctors will often follow the preferences of a Medical Directive, but there is a tendency on the part of medical staff reflexively to do everything to prolong life, regardless of the patient’s wishes.  This is what they were trained to do.  It is important for family members to monitor the treatment and remind the doctors and nurses of the incapacitated patient=s preferences.

For example, sending a patient to the hospital for intravenous hydration and medication is often the physician’s preferred treatment of a patient in the mid-term stages of Parkinson=s Disease.  If the Medical Directive says “No,” but the doctor says “Yes,” often the family will go along with the doctor=s decision.  The relatives do not want the doctor and staff to think of them as unfeeling and uncompassionate, but after a few such treatments some families may say “No more.”

My Medical Directive forms are free to my estate planning clients. The cost factor of a Medical Directive is usually negligible. To read my Medical Directive (requires Adobe® Acrobat®) in (PDF) format CLICK HERE (Use the "back" button to return to this page.) Aside from cost, do they make sense? While there is no assurance that a Medical Directive will be rigorously followed by medical professionals, it provides guidance for all involved in a traumatic medical situation. Medical Directives can be equated to imperfect maps. 

While all the roads may not be correctly shown, such a map will provide some guidance. Some guidance is usually better than none.

Copyright 2002

Published by the law firm of Newland & Associates, PLC
9835 Business Way
Manassas, VA 20110
Call us at (703) 330-0000 for a full range of business law and tax-related services.

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