Living Wills

The Living Will is also referred to as the Advance Directive for Medical/Surgical Treatment. This advance directive allows adults who have decisional capacity to set forth their written decisions as to the acceptance or rejection of life-sustaining procedures if at some future time, he or she has a terminal condition or is in a persistent vegetative state.  Two doctors must certify in writing that you have a terminal condition, or you are in a persistent vegetative state (unconscious or otherwise incompetent), and you are unable to communicate before the living will takes effect. Under Colorado law, a “life-sustaining procedure” is any medical procedure that only serves to prolong the dying process, including CPR, defibrillation, medications, and surgery.  Regardless of your decision to accept or reject life-sustaining treatment, medical professionals will continue to provide all necessary treatment to alleviate pain and suffering.

A Living Will may be revoked or amended at any time. It is important to provide your doctor with a copy of your Living Will to include in your medical records, so that they are aware of your wishes.  A Living Will must be witnessed by two uninterested parties, and it may be notarized. 

It is important to leave written instructions in a Living Will because many people lose decision making abilities before death.  In addition, a Living Will takes the burden of disconnecting life support off your family.  If you do not have a Living Will, but you have a Medical Power of Attorney, the agent named in the Medical Power of Attorney may make decisions regarding life support for you.  

Many of my clients are confused by the difference between a Living Will, a Living Trust and a Last Will and Testament.  A Living Trust and a Last Will and Testament are documents which state who should receive your property at your death and who should administer your assets.  A Living Will is a medical directive.  At a minimum, it is your personal statement about how long you want to be kept alive on machines if you are dying or in a condition where there is no hope of recovery.  There are many Living Will forms available to the general public.  The old forms are very simple. They ask you to initial your choice regarding life sustaining procedures and artificial nourishment and they state that you do not want to be kept alive for more than 7 consecutive days, or more, on life support.  

Many attorneys who specialize in elder law, estates and probate, have designed their own forms which are tailored to your needs and are more specific.  The form may ask for your directions if your wishes as stated in the Living Will conflict with your agents wishes under your medical power of attorney.  Many forms provide space where you can specify other medical directions, and some provide a HIPAA waiver so that your doctors may release medical information to your agent(s).  

Tamra K Waltemath

Tamra K Waltemath

This article was written by Tamra K Waltemath of Tamra K. Waltemath, P.C.  This information is for general informational purposes only and does not constitute legal advice.  For specific questions, you should consult a qualified attorney. Tamra K. Waltemath is an elder law attorney focusing on wills, trusts, estate and trust administration, probate and non-probate transfers, guardianships and conservatorships.  She can be contacted at:  Tamra K. Waltemath, P.C., 3843 West 73rd Avenue, Westminster, CO  80030; 303-657-0360; or visit her website at: www.WaltemathLawOffice.com.

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