A Document Checklist

Some points to consider in the process

On the Ohio side of the river, living wills are governed by Section 2133 of the Ohio Revised Code, Uniform Rights of the Terminally Ill.

On the Kentucky side of the river, living wills are governed by the Kentucky Revised Statute 311.625.

Meanwhile, in Indiana, living wills are governed by Section IC 16-36-4-1 of the Indiana Health & Hospitals Code.

Advance health care directives need to be in substantially the same form as they appear in the governing statute. The statutory form does not indicate how the options should be checked. The Attorney General, hospitals, and practicing attorneys differ on how the options should be checked. There are many such forms available through the Attorney General and through your local hospitals. However, points out attorney William E. Hesch, "especially in Kentucky, these forms are sometimes modified so as to make them ambiguous. The Kentucky Living Will Act permits the selection of any or all of certain powers and decisions you can make. One commonly distributed form, on the other hand, limits those options by instructing you that if you authorize a surrogate to make the call about ending treatment, you cannot make separate directions to your doctor about the provision of nutrition and hydration. This ambiguity in the form is not compatible with the statute, which permits you to authorize a surrogate to make certain decisions and make specific directions to your doctor.

"Hopefully, the statutory ambiguities will be cleared up soon, but in the meanwhile, you should consult an attorney who can answer your questions, draft the necessary documents, and guide you through the execution process. When you do execute your health care directives, make sure you give copies to your next of kin and to your physician to be placed in your permanent medical record."

Dr. Lori Shutter sees the impact of living wills practically every working day of her life.

As director of neurocritical care and neurointensive care at University Hospital, Shutter sees a full complement of trauma cases loaded off the hospital's AirCare helicopter or delivered by ambulance to the emergency room. "I think everyone should have one," says Shutter on the topic of living wills. "Once you have the right to vote, you have the right to make the decision about your own health care. And you should state that with an advanced direction, a living will, in place.

"Devastating things happen every day: car wrecks, accidents at work. When a patient is in a coma, sometimes a family doesn't know what to decide."

Essentially, a living will (also known as an advanced health care directive) specifies whether you would like to be kept on artificial life support if you are ever permanently unconscious or terminally ill and are unable to speak for yourself. (Being terminally ill generally means that you have less than six months to live.)

Given the national attention focused on the Terri Schiavo case earlier this year, more people than ever are aware that family members "” left to their own decision-making process "” may not agree on a correct course of action, say local attorneys.

"The recent case in Florida has significantly raised people's level of awareness about the need for having a living will and a health care power of attorney," observes William J. Baechtold, an attorney with Graydon Head & Ritchey LLP. "These documents provide a person the opportunity of giving advance directives with respect to health care decisions in the event that person is unable to make such decisions because of illness or injury."

Attorneys, doctors and other professionals suggest you consider the following points:

It's All in the Wording

The formal language of living will templates often refer to the will taking effect only when a patient is in a terminal or permanent state of unconsciousness. "But that's not what happens to most people," says Shutter about the frontline cases she sees in her emergency room. "What happens with a stroke or with a car accident is severe disability that does not meet that definition. So make your intention known. You can add any language you want to a living will. I have a paragraph in my living will spelling out what is not tolerable for me to (continue to) live."

Truly Understand the Difference Between a Living Will and a Health Care Power of Attorney

"In a living will, a person describes his or her wishes regarding the use of life-sustaining treatment, if he or she is determined to be in a permanently unconscious state and a terminal condition by his or her physician and one other physician," says Baechtold. "These directives will include such things as not administering CPR, issuing a DNR (do not resuscitate) order, withholding or withdrawing artificially or technologically supplied nutrition and hydration, and administering medication only to alleviate pain.

"A health care power of attorney is the vehicle by which a person may name someone else as his or her agent or attorney-in-fact to make health care decisions when he or she cannot do so. This document will set forth provisions identical to those found in the living will for the situation when the person is terminally ill and in a permanently unconscious state, and will also give additional directives with respect to other decisions related to both medical care and medical administration issues for all situations when the person is unable to act. Choosing the right person to serve in this role requires serious thought."

Both documents need to be signed with certain legal formalities, he adds. Ohio living wills and health care POAs, for instance, may be signed either in the presence of two witnesses or a notary public. However, the following persons cannot serve as a witness: the agent or any successor agent; the person's spouse; the person's children; anyone else related by blood, marriage or adoption; the person's attending physician; or, the administrator of a nursing home where the person resides.

State Lines Matter

Know that there are differences between advance health care directives in Ohio and Kentucky. "Generally, Ohi'™s directives are long and detailed, defining what your representative can and cannot do," observes William E. Hesch, an attorney and CPA. "Kentucky's form is short, and many of the statutory definitions can be construed broadly. However, with such broad construction, it could actually spawn the litigation you hope to avoid in the first place."

Hesch notes that Ohio allows its residents to make two separate documents, compared to Kentucky's combined document. Ohi'™s health care POA gives decision-making authority to an attorney-in-fact "whenever you cannot make such decisions." This authority is curtailed only by the living will declaration, which is a directive to your doctors that takes effect as soon as you reach a certain condition.

In Ohio, the living will is only executed if you wish that "dying not be artificially prolonged." On the other hand, Kentucky has separate lines on the form so you can direct whether you want such medical treatment or not. Remember, a living will is a communication between you and your doctors "” therefore, the only one who has to make that life-or-death decision is you.

Understanding a Surrogate Decision

Kentucky law provides for a single document called "Living Will Directive and Health Care Surrogate Designation," adds Hesch. "The Health Care Surrogate is able to make any decision which the patient would be able to make. Of course, the surrogate cannot contravene the patient's own directives as expressed in the living will document. Unlike Ohio, however, Kentucky's living will does not direct the withholding of artificially provided nutrients, but it only authorizes such withdrawal under an imminent death or permanent unconscious state test. It's an ambiguity in language and one that could potentially lead to litigation, leaving your status in limbo for a long time."

More State Line Distinctions

Ohio specifically provides for the attorney-in-fact to access medical records and billings, while Kentucky does not. "With the advent of HIPAA, a major medical privacy law, it's often very difficult for family members to obtain even the most mundane medical information," comments Hesch. "It's strongly recommended that in addition to these health-care documents, you consider executing a power of attorney with HIPAA-empowering language so your medical and financial affairs can be managed during your incapacity."

Consider a Hospital Transfer

Kentucky and Ohio recognize each other's health care directives to the extent that any of the provisions do not contradict their own laws. However, living in the Cincinnati area affords you the opportunity to be transferred to a hospital in the jurisdiction that will comply with your directives. For instance, if you're an Ohioan who gets injured in Kentucky, you have the right to be transferred to a hospital in Ohio if one or more of your provisions would be inconsistent with Kentucky's law.

Clearly State Your Intentions

An effective advance directive describes the kind of treatment you would want depending on how sick you are. For example, the directives would describe what kind of care you want if you have an illness that you are unlikely to recover from, or if you are permanently unconscious. Living wills can be used to direct loved ones and doctors to discontinue life-sustaining measures such as intravenous feeding, cardiopulmonary resuscitation or mechanical respirators.

Make the Living Will Part of Entire Estate Planning Process

The reality is that living wills are a small piece of the more in-depth estate plan.

Estate planning analyzes objectives for management and disposition of your property: Who should get your money and property when you're gone? Who will manage the estate? How are you handling succession and control of your business ownership? And do you need an attorney's help? (For that question, the answer is almost always "yes.")

And for that matter, bringing in other trusted professionals is a plus, including your accountant or investment advisor.