Case Study 1 - When is it too soon to honor a living will? When does your health-care agent have the authority to make your medical decisions?
Grandpa Dan is 78 years old and, as far as he knows, is in good health except for some arthritis in his hands. Grandpa Dan has a living will. He has stated to his family many times that he does not want to be kept alive on life-support systems when it's his time to go. At his death, his only child, Joe, will inherit a large amount of property.
Joe is home for a weeklong visit with his wife, Sarah, and their three children. Grandpa Dan is thrilled to see his son, his daughter-in-law, and grandchildren, and he has gone out of his way to show the grandkids a great time. On the third morning of the visit, Grandpa Dan experiences severe chest pain that radiates down his left arm. Joe fears that his dad is having a heart attack. As he rushes to call 911, Sarah reminds him that his father has a living will and would not want an ambulance called.
Grandpa Dan also named Joe as his health-care agent in his health-care durable power of attorney. When Joe insists on calling 911, Sarah reminds him that he has the right to make this decision for his father and that he is morally obligated to honor his father's wishes.
Answers for Kentucky Residents
The following answers are based upon Kentucky law as of April 2006. Laws are subject to change, so please ask an attorney for answers to specific questions.
1. As health-care agent, Joe has the right to make this decision for his father at this time.
- Kentucky Answer: False
- As Grandpa Dan’s health-care agent, Joe has the right to decide only if Grandpa Dan is no longer able to make and communicate a decision for himself. Is there any reason to believe he is unable to do so at this point? Also, Grandpa Dan’s living will is designed to give guidance when he is incurably facing death, not when he needs emergency care that might restore him to health.
2. Joe should honor his father’s living will and not call 911.
- Kentucky Answer: False
- A living will provides direction in the event the person making it is no longer able to make and communicate a decision, has a terminal condition, or is permanently unconscious. It does not mean that medical care may be denied when it could restore the person to health. Emergency medical care could save Grandpa Dan’s life if he is having a heart attack. He is not suffering from the type of incurable illness which his living will is intended to address. Joe has no authority to make this decision at this time.
Assume that Joe calls 911 and Emergency Medical Services arrives.
3. EMS will need a copy of Grandpa Dan’s living will.
- Kentucky Answer: False
- Unless his doctor has given a “Do Not Resuscitate” (DNR) order on a standard form, EMS has a duty to try to resuscitate Grandpa Dan when they are called. His living will is not needed or relevant in this situation.
4. Sarah will be able to stop EMS from resuscitating Grandpa Dan by showing them his living will.
- Kentucky Answer: False
- Unless Grandpa Dan’s doctor has issued a DNR, EMS must try to resuscitate him. It is up to the physician, not the EMS personnel, to determine when the patient is reduced to a condition in which the living will becomes operative—that is, when the patient is no longer able to make and communicate a decision, has a terminal condition, or has become permanently unconscious. A terminal condition is one that the patient’s attending physician and one other physician determine is incurable and irreversible and will result in death within a relatively short time, and where resorting to life-prolonging treatment would serve only to prolong the dying process artificially.
5. After EMS takes Grandpa Dan to the hospital, Joe should show his doctors the health-care power of attorney and the living will.
- Kentucky Answer: True
- It is the responsibility of Grandpa Dan or Joe (as his representative) to notify the attending physician and health-care facility where Grandpa Dan is a patient that an advance directive has been made. The physician will then include the advance directive in the patient’s medical record.
6. Once the doctors have a copy of Grandpa Dan’s health-care power of attorney, they must consult with Joe before making major health-care decisions.
- Kentucky Answer: It depends
- If Grandpa Dan is still able to make and communicate his decisions, this fact trumps Joe’s authority to make decisions on his behalf. As long as he is still competent, Grandpa Dan may orally revoke his earlier written directive. Joe’s authority to intervene, and the doctor’s obligation to consult with him, is triggered only by Grandpa Dan’s losing the ability to decide for himself, or having a terminal condition, or becoming permanently unconscious.
7. Joe, as Grandpa Dan’s health-care agent, can revoke Grandpa Dan’s living will.
- Kentucky Answer: False
- Only Grandpa Dan can revoke his living will.
Return to Advance Directives Case Study 1.
See all Advance Directives Case Studies.
Return to the Communicate Your Advance Directives for Health Care learning lesson.
Credits
Adapted for use in the Legally Secure Your Financial Future: Organize, Communicate, Prepare program.
Content development
Reviewed for use in Kentucky by:
Matthew Holland, law student,
Louis D. Brandeis School of Law, Samuel L. Greenbaum Public Service Program,
University of Louisville, Louisville, Kentucky
Supervised by:
Ron Marstin, Urban Managing Attorney,
Legal Aid Society, Louisville, Kentucky
This information is provided as a public service and is designed to acquaint you with certain legal issues and concerns. It is not intended to be a substitute for legal advice, nor does it tell you everything you may need to know about this subject. Future changes in the law cannot be predicted, and statements in these materials are based solely on the laws in force on the date of release noted on this page.
This document is for non-profit educational purposes only. This document may not be used by a profit-making company or organization. When used by a non-profit organization, appropriate credit must be given to the Cooperative Extension Legally Secure Your Financial Future: Organize, Communicate, Prepare education program. Materials for this program were developed by a team from six land-grant universities. The program is included in the program toolkit of the Cooperative Extension Financial Security in Later Life national initiative. For more information go to: http://www.csrees.usda.gov/fsll.