法律英语：51 Living Wills and Power of Attorney

by Michael W. Flynn

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction². Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is living wills and power of attorney as it relates to medical issues. After the legal and moral battle surrounding Terry Shaivo, many Americans reconsidered their medical affairs. Today I will discuss living wills, health care proxies³, and how a power of attorney relates to them.

So long as you are competent, you have almost unfettered discretion⁴ to make your own health care decisions. But if you become incapacitated, your doctor will have broad discretion over your health, and is charged with a duty to do what is necessary to make you healthy. If you do not have any legal documents to express your wishes, or to appoint someone to make healthcare decisions on your behalf, the doctors who attend you will use their own discretion in deciding what kind of medical care you will receive. But many people have their own ideas about what is best for them. This is where living wills and durable⁵ powers of attorney come in.

A living will is simply a document that sets out your wishes about what extended medical treatment should be withheld⁶ or provided if you become unable to communicate those wishes. In some states, this is called a Directive to Physicians or Healthcare Directive. A living will bears no relation to the conventional will or living trust used to leave property at death; it's strictly⁷ a place to spell out your health care preferences. To create a living will, you typically need to be competent, sign the document enumerating⁸ your wishes, and have one or two witnesses. In many states such as Georgia, North Dakota and North Carolina, a living will becomes invalid⁹ while you are pregnant. In most states, living wills cannot take effect legally unless the patient is medically determined¹¹ to be in a permanent vegetative state or terminally ill, and unable to communicate medical preferences.

Determining whether a person is in a permanent vegetative state can be difficult. Many living wills require that two doctors who do not work together must agree on your status before a living will takes effect. You can define what “incapacitated” means when drafting by setting forth¹² the terms in your living will. You can also require that your agent consult with a specific person or doctor.

A living will can cover a variety of topics including: transfusions¹³ of blood and blood products, CPR, diagnostic tests, dialysis, administration of drugs, the use of a respirator, and surgery. You may specify¹⁴ in your living will under what circumstances you might want certain types of health care. For example if you go into a coma¹⁵ due to kidney failure, you may specify that you want dialysis for only one year, and to stop treatment after that time. You may even direct a doctor to stop giving you food and water at a certain point.

As I discussed in last week’s episode a power of attorney is a document that gives one or more persons the power to act on your behalf. A durable power of attorney gives an attorney-in-fact legal power to make health care decisions for someone who cannot make those decisions for him or herself. A durable power of attorney differs from a living will in that it may direct your agent to carry out the living will's instructions or it may allow your agent to use his or her own discretion. The living will itself also can specify a proxy¹⁶ to help enforce its terms. A durable power of attorney may be used whenever the individual granting the power cannot make his or her own health care decisions; it does not depend on terminal illness or permanent unconsciousness to become effective. Most estate planning attorneys recommend both documents to cover all situations.

The greatest benefit for having these documents is to ensure that your wishes, and not someone else’s, are carried out. When faced with the possibility of your death, your spouse¹⁷ or partner might want to keep you alive at all costs, but you might want to avoid unnecessary physical pain, or limit the financial burden you place on those you will leave behind. If you do not have a valid¹⁰ living will, your wishes might be disregarded.

These decisions are highly personal, and you should consult with your physician and loved ones. But, discuss them now while you are healthy, so you can think rationally and communicate your wishes early.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful¹⁸ Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.

You can send questions and comments to..........or call them in to the voice-mail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

Legal Lad's theme music is "No Good Layabout" by Kevin MacLeod.

 

1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 proxies   

n.代表权( proxy的名词复数 )；（测算用的）代替物；（对代理人的）委托书；（英国国教教区献给主教等的）巡游费

参考例句：

• SOCKS and proxies are unavailable. Try connecting to XX again? socks和代理不可用。尝试重新连接到XX吗？ 来自互联网
• All proxies are still down. Continue with direct connections? 所有的代理仍然有故障。继续直接连接吗？ 来自互联网

4 discretion   

n.谨慎；随意处理

参考例句：

• You must show discretion in choosing your friend.你择友时必须慎重。
• Please use your best discretion to handle the matter.请慎重处理此事。

5 durable   

adj.持久的，耐久的

参考例句：

• This raincoat is made of very durable material.这件雨衣是用非常耐用的料子做的。
• They frequently require more major durable purchases.他们经常需要购买耐用消费品。

6 withheld   

withhold过去式及过去分词

参考例句：

• I withheld payment until they had fulfilled the contract. 他们履行合同后，我才付款。 来自《简明英汉词典》
• There was no school play because the principal withheld his consent. 由于校长没同意，学校里没有举行比赛。 来自《简明英汉词典》

7 strictly   

adv.严厉地，严格地；严密地

参考例句：

• His doctor is dieting him strictly.他的医生严格规定他的饮食。
• The guests were seated strictly in order of precedence.客人严格按照地位高低就座。

8 enumerating   

v.列举，枚举，数( enumerate的现在分词 )

参考例句：

• There is no enumerating the evils of dishonesty here. 欺诈的罪恶在这里难以（无法）一一列举。 来自互联网
• What she used to be most adept at was enumerating. 从前，她最拿手的是数落。 来自互联网

9 invalid   

n.病人，伤残人；adj.有病的，伤残的；无效的

参考例句：

• He will visit an invalid.他将要去看望一个病人。
• A passport that is out of date is invalid.护照过期是无效的。

10 valid   

adj.有确实根据的；有效的；正当的，合法的

参考例句：

• His claim to own the house is valid.他主张对此屋的所有权有效。
• Do you have valid reasons for your absence?你的缺席有正当理由吗？

11 determined   

adj.坚定的；有决心的

参考例句：

• I have determined on going to Tibet after graduation.我已决定毕业后去西藏。
• He determined to view the rooms behind the office.他决定查看一下办公室后面的房间。

12 forth   

adv.向前；向外，往外

参考例句：

• The wind moved the trees gently back and forth.风吹得树轻轻地来回摇晃。
• He gave forth a series of works in rapid succession.他很快连续发表了一系列的作品。

13 transfusions   

n.输血( transfusion的名词复数 )；输液；倾注；渗透

参考例句：

• Still, transfusions have apparently never spread the disease, even among hemophiliacs. 还有，输血很明显从未传播过这种病，即使在血友病人之间也是如此。 来自英汉非文学 - 生命科学 - 口蹄疫疯牛病
• Blood transfusions are a special, limited example of tissue transplantation. 输血是一个特殊的、有限制的组织移植的例子。 来自辞典例句

14 specify   

vt.指定，详细说明

参考例句：

• We should specify a time and a place for the meeting.我们应指定会议的时间和地点。
• Please specify what you will do.请你详述一下你将做什么。

15 coma   

n.昏迷，昏迷状态

参考例句：

• The patient rallied from the coma.病人从昏迷中苏醒过来。
• She went into a coma after swallowing a whole bottle of sleeping pills.她吃了一整瓶安眠药后就昏迷过去了。

16 proxy   

n.代理权，代表权；（对代理人的）委托书；代理人

参考例句：

• You may appoint a proxy to vote for you.你可以委托他人代你投票。
• We enclose a form of proxy for use at the Annual General Meeting.我们附上委任年度大会代表的表格。

17 spouse   

n.配偶(指夫或妻)

参考例句：

• Her spouse will come to see her on Sunday.她的丈夫星期天要来看她。
• What is the best way to keep your spouse happy in the marriage?在婚姻中保持配偶幸福的最好方法是什么？

18 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。