A lot of people who are concerned about probate are worried about potential bureaucratic hassles and family fights over property. But if you have heard of a specific probate fight, there is a good chance the fight was not about who gets what, but about end-of-life medical treatment for a loved one (the Terry Schiavo case is a relatively recent example of a “living probate” case that many people remember because Congress and the President got pulled into the fight).
While fights about property can certainly become combative and expensive, and can tear families apart, disagreements about how to treat someone who appears to be in an end-of-life situation can be especially difficult because, unlike with property, there is rarely any possible compromise, and the decision to allow the patient to die is, of course, a permanent one.
Creating a living will can help your family avoid these disagreements and ensure that your care is managed according to your wishes.
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A Living Will (or Advance Directive) is a set of instructions to your caregivers as to how they should proceed with your medical care in an end of life situation. It is often confused with a Living Trust or a Will, both of which concern the management and distribution of property.
The Living Wills we provide contain your preferences about the kind of medical treatment you would want to continue receiving if you are in either of two specific situations:
1. after doctors have concluded you are in a terminal condition; or
2. after doctors have determined you are in a persistent vegetative state from which you are almost certainly not going to recover.
Your caregivers will reference your Living Will preferences only if these two factors are present.
1. You (the patient) must be incapacitated. If you are able to communicate your wishes to your doctors, your doctors are going to follow your instructions.
2. Two qualified medical professionals (the attending physician and one other physician qualified to make such determination), each of whom has independently examined you, must agree that you are either in a “terminal condition” or in a “persistent vegetative state.”
A “terminal condition” is one in which your doctors have determined that the treatment you are receiving is only postponing death, not making you better. No cure is possible in a terminal condition. In addition, the progression of the disease or ailment is degenerative.
A “persistent vegetative state,” refers to the condition of your brain. It means that you lack consciousness, self-awareness, and personality, and these characteristics will not return to you. Such a condition is not necessarily terminal, because it is not progressive. The most famous vegetative state cases have lasted for decades, with little more than basic medical care and the artificial administration of food and hydration.
If your loved one has severe cerebral damage and has been unconscious for at least four weeks, they are considered to be in a persistent vegetative state. This is not the same as a coma, because comatose patients are never conscious, but a patient in a persistent vegetative state can show signs of wakefulness such as making sounds, body movements, or eye movements. In contrast, brain death is the irreversible loss of all functions of the brain, including the brainstem. A diagnosis of brain death is much more definitive than persistent vegetative state and relies on three main components:
1. Coma: Patient should be completely unresponsive and unconscious (typically tested with painful stimuli).
2. Absence of Brainstem Reflexes: Patient should be unresponsive to stimuli that otherwise would trigger an involuntary response (such as dilation of the pupils in the presence of a bright light).
3. Apnea Test: The patient, when disconnected from a respirator, should not have respiratory movements and will show other measurable signs supporting the diagnosis of brain death.
It used to be that you could only specify once for all possible scenarios whether you would want medical treatment and food and hydration to be continued, and if so, for how long. Colorado’s current advance directive statute, however, allows you to specify a different course of treatment for each of the possible scenarios.
You could, for example, say that you want medical treatment immediately stopped in both a terminal condition and persistent vegetative state scenario, but would always want food and hydration to be continued indefinitely. Or you could say that you want all treatment and sustenance stopped if you are in a terminal condition, but would want to be kept alive for six months if you are thought to be in a persistent vegetative state.
It is important to note that the medical treatment that would be stopped does not include treatment being provided for pain relief and comfort. Regardless of your instructions with regard to life-extending medical treatment, your healthcare professionals will always do what they can to keep you comfortable.
In addition to end-of-life medical treatment, Colorado living wills can:
1. Specify whether the patient’s medical agent (appointed by the Medical Power of Attorney) can override the instructions contained in the living will.
2. Contain a list of friends and family members who should be given access to information about the patient.
3. Provide instructions with regard to tissue and organ donation.
4. Provide guidance with regard to religious, philosophical, or moral convictions that the patient has concerning end-of-life treatment and care.
It’s not impossible for PVS patients to recover higher brain functions, just extremely rare and largely dependent on the cause and nature of the brain injury. But the chance of recovery after three months is very small.
The New England Journal of Medicine provides two dimensions of recovery from a persistent vegetative state: recovery of consciousness and recovery of function. Recovery of consciousness can be verified by reliable evidence of awareness of self and the environment, consistent voluntary behavioral responses to visual and auditory stimuli, and interaction with others. Recovery of function is characterized by communication, the ability to learn and to perform adaptive tasks, mobility, self-care, and participation in recreational or vocational activities. Recovery of consciousness may occur without functional recovery, but functional recovery cannot occur without recovery of consciousness.
Recovery of function after traumatic brain injury varies in effect depending on the amount of time before recovery of consciousness. Patients who recovered almost always showed signs of improvement within three months. Late emergence to a state of more consistent consciousness can take months, or even years in rare cases, and is always associated with severe to extremely severe functional disability and a poor functional outcome. For more information, see: https://www.nejm.org/doi/pdf/10.1056/NEJM199406023302206 or https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5726348/
If you think it might be time to think through your Colorado Living Will, you can:
- Give us a call at 303-578-2745 to schedule a “Discovery Session” at which we can determine whether our firm would be a good fit for your needs. Or fill out our contact form to have us call you.
- Get a copy of our estate planning checklist to see where you currently stand.
- Learn more by attending one of our free webinars, reading our blog, or watching our videos.