For years, there have been computer software do-it-yourself legal kits for everything from incorporating businesses to buying and selling real estate. In the wake of the recent Terry Schiavo matter, where Schiavo’s husband and parents litigated extensively over which of them had the right to determine Schiavo’s medical treatment, numerous do-it-yourself Living Will kits have suddenly sprung on the market. These offers are available at extremely low prices, promising to help purchasers design the ironclad documents that will dictate their medical treatment in the event they are unable to voice their own desires.
It is certainly commendable for individuals to actively take control of their medical futures and alleviate the potential burden on family and loved ones of having to make difficult decisions in the face of physical incapacitation. However, purchasers should be aware that there is currently no nationally standard Living Will document accepted in all states.
Each state promulgates its own legislation regarding the type of document that is legally acceptable to appoint a medical agent and may offer varying degrees of authority to the medical agent. In fact, some states do not authorize the documents referred to as “Living Wills,” such as Massachusetts, which instead provides for a similar document called a Health Care Proxy. One reason for the variation among the states may be because the authority to appoint medical agents derives from different areas of the law depending on the state. For example, in just the northeastern states, residents may appoint medical agents based on legislative authority from the following areas of state law: Conn.: Conn. Code of Public Health and Well-Being, Chapter 368w, section 19a-575; Maine: Maine Probate Code, Title 18-A (Protection of Disabled Persons); Mass.: Massachusetts General Laws, Chapter 201D (Health Care Proxies); N.H.: N.H. Public Health Code, Chapter 137-H; N.Y.: N.Y. Public Health Law, Article 29-B (Orders Not to Resuscitate); R.I.: R.I. Health and Safety Code, Title 23, Chapter 4.11 (Rhode Island Rights of the Terminally Ill Act); Vt.: Vt. Health Code, Title 18.
One potential difficulty with each state having its own requirements for appointing medical agents is that the medical agency, while legitimate in the state of origin, may not be valid in another state. This scenario may play out when patients move to other states without updating their documents, or when they are transferred between care facilities over state lines. Formerly, residents of one state could generally rely on other states for legal reciprocity; that is, if documents were legally and validly executed in the residents’ home state, they could rely upon other states to recognize and enforce these documents in any other state. As we have seen recently with other areas of the law, such as same-sex marriage, this reliance no longer exists, and those who execute Living Wills or their legal equivalent should be aware of this potential problem.
Additionally, many hospitals or health care facilities prepare their own documents for patients to use in appointing medical agents. Patients should attempt to independently ascertain whether or not these forms are valid statewide, or only of use in the specific hospital or health care facility. If the documents are only valid at the particular location, the patients may lose their medical agents if they are moved to a different location, even within the same state.
With recent developments in national health care, in addition to complying with statewide laws, treating physicians now also have to ascertain whether or not the release of certain medical record information to medical agents complies with HIPAA regulations. Patients may want to inquire with their physicians or health care providers about what type of release they would require included with their appointment of a medical agent so that the medical agent would have access to all necessary information from the medical files.
These are just some of the issues to consider when examining the promises of security offered by do-it-yourself Living Will kits. There may not be any “ironclad” document appropriate for all purchasers in all situations. Those who wish to execute documents appointing medical agents should research and confirm the validity of the instruments they sign, and not assume that validly executed Living Wills or Health Care Proxies from a home state will automatically be recognized by other jurisdictions.
by Edward M. Stern, J.D. and Beth L. Aarons, J.D., M.S.W. Reprinted with permission of The New England Psychologist