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The Weekly Scenario: Advance Directive for Health Care

An concept Image of a living will declaration

The question of when to withhold or terminate life support for an unconscious or terminally ill person is one that is hotly debated. As you can probably guess, there are a host of medical, ethical, religious and legal issues.  

Prior to legislation dealing with these issues, the decisions were usually made by family members in conjunction with doctors, and if disagreements arose, the issue was brought to the courts.

In the famous Cruzan case, the Missouri court held that a permanently unconscious patient could refuse medical treatment, but her wishes had to be expressed by clear and convincing evidence before the onset of the unconsciousness.  

Since it became of critical importance that a person set forth her wishes about the so called ‘heroic measures’ it became the common practice for a person to make a Living Will. The Living Will is a document in which you express your wishes about medical treatment in the event that you are unable to make decisions about your own care. The Living Will specifies the medical treatments you wish to accept or refuse and the circumstances under which your wishes will be carried out.  

Many people make the mistake of assuming a Living Will gives the order to pull the plug. While some people want that and include such a provision, a Living Will can contain any instructions, including using all life-saving and life-supporting measures possible. A Living Will can be personalized and gives you the opportunity to say what you want.

If you have been admitted to the hospital in the last decade or so, you know that you will be asked if you have a Living Will. If you cannot provide a copy and you don’t have one, you will be offered one.  

Most states have enacted the Advance Directive for Health Care, which establishes rules for the effectiveness of Living Wills and how they should be utilized. The Advance Directive may generally be executed by a competent individual over the age of 18. It must be signed by the individual and have two witnesses. While the Advance Directive is legally binding, signing it does not mean your choices are irrevocable. You can make revisions or even revoke the document at any time. You can implement changes in writing, orally, or even any action like a wink or nod so long as they are communicated. 

Generally, a person names a relative, close friend or religious adviser as the surrogate. It is important that this person have a copy of the document, in addition to other family members and your physician, as you feel appropriate. 

As always, if you have any questions or would like to learn more, please contact Steve Shane at sshane@offitkurman.com or 301.575.0313.


Steve Shane Casual Smallsshane@offitkurman.com | 301.575.0313

Steve Shane provides strategic counseling to clients in need of estate administration, charitable giving and business continuity planning while minimizing estate, gift, and generation-skipping transfer tax exposure. He offers legal guidance to clients on asset protection and the proper disposition of assets in accordance with the client’s objectives, while employing tax planning techniques such as the use of irrevocable trusts, life insurance planning, lifetime gifts, and a charitable trust. He is also experienced with drafting documents for business planning, the incorporation, and application for exemption for Private Foundations and the administration of decedents’ estates.


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Author: Steve Shane, Esq.
Articles have been Reprinted with permission from the charlotte observer and Mike Hunter.

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