Every year, every month, and every day, we make important decisions as to how we live our lives. Sometimes, however, an unexpected event, severe illness, or terminal condition may render us unable to either make the choices we would like or communicate our wishes to others. When that happens, loved ones as well as doctors are often left in the difficult and unenviable position of making life and death healthcare decisions without fully knowing what the individual would have wanted.
To spare family members from this responsibility during what can already be an intensely stressful time, Arkansas law allows people to execute documents that provide specific and detailed instructions about the treatment they will – or will not – receive in the event that they are incapacitated or are otherwise incapable of making or communicating their decisions. These documents are called “Advance Directives.”
In Arkansas, there are two main types of Advance Directives: Living Wills and Durable Powers of Attorney for Healthcare (also known as a healthcare proxy). They key distinction between the two documents is that the former specifies what physicians should or should not do while the latter puts the decision–making power in the hands of someone designated by the maker, usually a relative or other loved one.
Living Wills. A living will is a direction to an attending physician to withhold or withdraw treatment that only prolongs the process of dying and is not necessary to alleviate pain. The directions can specify the life-sustaining treatments that can be withheld and withdrawn, including such things as cardiopulmonary resuscitation, ventilators, feeding tubes, and IV therapy.
Governed by the Arkansas Rights of the Terminally Ill or Permanently Unconscious Act, a living will becomes operative once the directives it contains are communicated to the physician and it is determined by the attending physician and another consulting physician that the patient either is in a terminal condition and no longer able to make decisions regarding administration of life-sustaining treatment or will remain permanently unconscious. Once a living will becomes operative, doctors and other health care providers are required to follow the directives contained therein.
Durable Power of Attorney for Healthcare. Also known as a “healthcare proxy” or “appointment of a healthcare agent,” this document lets the declarant name a person to make medical decisions for them in the event that they become unable to do so. A durable power of attorney for healthcare can be executed in conjunction with a living will to address situations or treatments not specifically covered in the living will. The durable power of attorney for healthcare is active for all other medical decisions not covered by a living will whenever the individual is unable to make decisions for themselves.
Preparing an advance directive can be emotionally difficult as it requires giving detailed thought to end-of-life decisions. It involves contemplation about what is important to the person in terms of quality of life as well as consideration of the various options available to healthcare providers for extending the lives of the terminally ill or permanently unconscious.
There are specific legal requirements as to who can prepare and execute advance directives, as well as how they must be executed in order to be valid. It is also important that loved ones and physicians are aware of the existence of these documents and that they are available in the event that incapacitation is sudden or unexpected.
In addition to discussing the choices involved with family members and doctors, individuals considering an advance directive should meet with an experienced Arkansas attorney who can thoroughly explore options and ensure that the documents will accomplish their intended goals.