Q: After watching friends of ours argue with their siblings about what care their dying parents would have wanted had they signed living wills, my wife and I became bound and determined to spare each other – and our children – as much anguish as possible. We went to a local hospital and were given living will forms, but we found the written explanations lacking. When we called to get more information, we were patched into voicemail and have not been called back. We then called our physician, who was too busy to talk to us at length about our questions.

After finding out how difficult it is to get information, it’s little wonder that our friends’ parents didn’t sign living wills. We are ready to make the decisions, but as important as they are, we don’t want to tackle them until we are satisfied with the explanations. Are we the only ones this thick-headed?

A: You are neither “thick-headed” nor alone. Left unattended, the health care decision-making process – of which end-of-life planning is a part – can affect family dynamics, and sometimes cause irreparable breaches of family relationships.

Public interest in “right-to-die” issues was heightened in 1990 after the U.S. Supreme Court decided the Nancy Cruzan case and affirmed an individual’s right to make end-of-life decisions in advance of the event. However, rather than establishing a national standard, the court left the states with the flexibility to set the parameters within which appointed agents can make these important decisions for those who can no longer do so.

During this past year, the Terri Schiavo case again ratcheted up the public’s interest in these important issues.

Planning ahead

The laws of each state authorize written “advance health care directives” by which you can give instructions to health care providers and agents about how you want to be treated if you are unable to make your own decisions, including whether you want life-sustaining treatment provided, withheld or withdrawn at or near the end of life.

Should you become incapacitated, need medical decisions made, and have no advance directive, your state has enacted laws that arbitrarily list those who have priority in making your decisions for you. As you saw with your friends’ parents, the problem with relying on state laws is that if one class of decision-makers – children, for example – has more than one member, disagreements can, and most likely will, occur.

Generally speaking, living wills are a type of advance directive that apply when you are incapacitated and either have an incurable condition that will result in your death in a reasonably short time without the use of life-sustaining procedures; or are permanently unconscious – that is, is in a persistently vegetative state with no brainwaves.

While the living will has received most of the publicity, the “durable health care power of attorney” is a much more flexible document through which you can authorize an agent to make decisions not only about life-sustaining medical treatment, but also to act on other than end-of-life medical treatment if you are unable to make your own decisions.

It is important to remember that:

¢ So long as you are competent, you will make your own health care decisions.

¢ By making an end-of-life decision, you will not be discontinuing pain management and comfort care.

¢ Advance directives become effective only if you are no longer able to make or express your decisions.

Questions to answer

We believe that before you make end-of-life and other health care decisions, you should first answer these important questions:

¢ If I am in a life-and-death situation, do I want medical treatment to be refused or withdrawn, and if so, under what circumstances?

¢ How should medical decisions that do not involve life-and-death issues be handled if I am unable to express my wishes?

¢ Which person is best suited to make these decisions should I be unable to do so?

Most Americans die in institutions after extended and deteriorating illness or acute injury. Most deaths follow a decision made near the end of life. Today, Americans want to control both the quality and quantity of life, but not enough know how or take the time.

Creating and enacting meaningful health management programs is important. Because the manner in which your documents are signed is important – generally, before unrelated witnesses, sometimes with a notary public – depending on where you live, we suggest that you consult an experienced lawyer about the content and execution requirements.

– Jan Warner is a member of the National Academy of Elder Law Attorneys and has been practicing law for more than 30 years. Jan Collins is editor of the Business and Economic Review published by the University of South Carolina and a special correspondent for The Economist.