Why Does Ohio Have a New Living Will Law? back to top

Tragic cases like those of Karen Ann Quinlan and Nancy Cruzan have made a lot of us think about the use of medical life-support systems -- and their removal from patients who are terminally ill or in an irreversible coma.

For more than a decade, the Ohio General Assembly debated whether Ohioans should be able to have a "Living Will" that would enable them to refuse or discontinue life-prolonging treatment when there is no hope for recovery.

Now the debate has produced an important result. Effective October 10, 1991, there are two different kinds of legal documents that Ohioans can complete while we are in good health to spell out our health care preferences for the future. One of these documents is called a "Living Will Declaration." The other is called a "Durable Power of Attorney for Health Care."

The documents protect your right to self-determination, and protect your family from uncertainty.

What is a Living Will Declaration? back to top

A living will is a binding legal document you can complete now which declares what your wishes are regarding the use of life-sustaining treatment, if you should become terminally ill or permanently unconscious.

A living will:

• becomes effective only when a patient is permanently unconscious or terminally ill and unable to communicate;
• spells out whether or not you want life-support technology used to prolong your dying;
• gives doctors the authority to follow your instructions regarding the medical treatment you want under these conditions;
• can't be revoked by anyone but you, and you can change it at any time;
• will be followed for a pregnant woman only if certain conditions apply;
• specifies under what conditions you would want internal feeding and fluids to be withheld.

What is a Durable Power of Attorney for Health Care? back to top

A Durable Power of Attorney for Health Care is a legal document which authorizes another person to make health care decisions for you if you lose the capacity to make informed health care decisions for yourself.

A Durable Power of Attorney for Health Care:

• names an individual you trust to make a wide variety of health care decisions for you at anytime you cannot do so for yourself-- whether or not your condition is terminal
• becomes effective only when you are temporarily or permanently unable to make your own decisions regarding treatment
• requires the person you appoint to make decisions that are consistent with your wishes
• will not overrule a living will in the event you have both documents

Definitions You Should Know back to top

The new law uses several words which have meanings that might be helpful to explain here.

Life-Sustaining Treatment - any medical procedure, treatment, intervention, or other measure that when administered to you serves principally to prolong the process of dying.

Hydration - means fluids that are artificially or technologically administered through tubes.

Nutrition - refers to food that is artificially or technologically administered through tubes.

Permanently Unconscious - means that to a reasonable degree of medical certainty:

1. you are irreversibly unaware of yourself or your environment

2. there is total loss of cerebral cortical functioning- which results in your having no capacity to experience sensations.

Terminal Condition - means an irreversible, incurable, and untreatable condition caused by disease, illness, or injury from which to a reasonable degree of medical certainty:

1. there can be no recovery

2. death is likely to occur within a short period of time if life-sustaining treatment is not administered.

Comfort Care - means nutrition and/or hydration when administered to diminish pain or discomfort, but not to postpone death; and any other medical care that diminishes pain or discomfort-like pain medication and turning a patient-but does not postpone death.

Other Frequently Asked Questions back to top

• I don't know about life-support equipment, so I don't know what treatment I'd want. How do I get more information?

The new law gives each of us the opportunity to learn about our options and assume responsibility for our own health care decisions. It is important to talk to your doctor and get your questions answered.

• If I have a Living Will, do I need a Durable Power of Attorney for Health Care too?

Many people will want to have both documents because they address different aspects of your medical care. A living will gives your instructions directly to your doctor and it only applies when you are beyond medical help and cannot communicate or in a permanent coma.

A durable power covers a wide range of health care decisions-like approving surgery or changing doctors -- that don't require a patient to be dying. Often a spouse or relative is selected to act on your behalf, when you can't, because they know you well enough to know what you'd want done.

• If I have a living will, and it says that I don't want to be hooked up to life-support equipment, would I still get medication for pain?

Yes. A living will only affects care that artificially or technologically postpones death. It would never affect care that eases pain. For example, you would continue to receive oxygen and medical care that includes pain medication, spoon feeding, and being turned over in bed.

• Who makes the decision that I am dying or permanently unconscious without hope of recovery?

If you've indicated that you don't want your dying to be artificially prolonged, two doctors must agree that you are beyond any medical help and that you will not recover.

• A living will may be important for a senior citizen, but why should this be a priority for someone in their twenties?

A living will is designed to give you and your family peace of mind whether you are 25 or 75 years of age.

Traffic accidents are the leading cause of death among Ohioans under the age of 45. Nancy Cruzan was thrown from a car and went into an irreversible coma when she was 25. Because she didn't have a living will or Durable Power of Attorney, her family had to struggle in the courts for seven years before life-support machines could be turned off.

• Would my family be notified before doctors stop life-support treatments?

Yes. Doctors are required to notify a person named in you living will, or a family member, before following your instructions to withdraw life-support. If that person feels your living will isn't being properly followed, or isn't legally valid, they can receive an immediate hearing in probate court to determine if there are legal grounds not to follow your instructions. By law, no one can change or overrule your living will if it was freely and correctly executed.

• If my condition becomes hopeless, can I specify that I want my internal feeding and fluid tubes removed?

No special instructions are needed to allow the withholding of nutrition and hydration if you are in a terminal condition and they don't provide you with comfort or relieve your pain.

However, if you want to allow your doctor to withhold artificial nutrition / hydration if you are permanently unconscious, your document needs to expressly state this.

• My mother is in a nursing home. If she gave me her Durable Power of Attorney for Health Care, would this let me act on her behalf in every area affecting her treatment?

Yes, a Durable Power of Attorney for Health Care covers not just life-sustaining treatment, but all aspects of medical treatment once the patient is unable to express his or her own wishes. A regular power of attorney over a relative's business affairs doesn't apply to medical situations. You need a special durable power of attorney for health care.

• If I want to designate someone to make health care decisions for me, must it be a member of my family?

No, you may appoint anyone you wish as long as it isn't your doctor or the administrator of a health care facility in which you are being treated.

• I had a Durable Power of Attorney for Health Care before the new law went into effect. Do I need a new one?

You may. Check with your attorney to make sure that the document you have includes specific language that is required under the new law.

• Do I have to use the standard forms for a living will or a health care power of attorney or can I draw up my own documents? If I wanted to use the standard forms, where would I find them?

You do not have to use the standard forms. However, in order for either document to be valid, it must include specific language spelled out in the Ohio Revised Code. Your physician and attorney will have copies, as will many organizations.

The Ohio Hospice and Palliative Care Organization provides information in a packet entitled Choices: Living Well at the end of Life. Instructions and forms for completing Ohio's Living Will, Ohio's Health Care Power of Attorney, and a uniform organ donor card are also in this packet.

• After I have filled out a living will declaration or form for a durable power of attorney for health care, what do I do?

Make several copies. Give one to a trusted member of your family. Keep another with your personal papers. Leave copies with your physician and your lawyer.

• Can I have documents that say that if I become critically ill, I want treatment to be continued using every available means to keep me alive?

Yes, but you should talk to an attorney. You will not be able to use the standard forms for the documents. You should also talk to your physician about the effect of your decision.

Information on the Recently Passed Provision to the Living Will Law back to top

1. Requires the Department of Health to establish a protocol for withholding cardiopulmonary resuscitation (CPR) from a patient who requests that it be withheld and to approve one or more standard forms of DNR (do-not-resuscitate) identification.

2. Requires emergency medical service providers to follow do-not-resuscitate protocol and to withhold CPR from a person with DNR identification.

3. Specifies which prevails when there is a conflict between a living will, a durable power of attorney for health care, and DNR identification.

4. Provides immunity for not performing CPR on a person who possesses DNR identification and for performing it on request despite DNR identification.

5. Prohibits insurers and health care providers from interpreting, modifying, or refusing to issue an insurance policy based on whether a person possesses DNR identification.

6. Establishes criminal penalties for concealing a person's instructions regarding the use or withholding of CPR.

7. Requires that a residential care facility transfer a resident if unable or unwilling to comply with the provisions of the resident's living will.

8. Specifies that punitive damages for violations of the rights of residents of long-term care facilities cannot be recovered unless (1) the resident is entitled to compensatory damages and (2) the actions of the violator demonstrate malice, fraud, or insult.

Source: "Speaker's Kit" Prepared by Joint Effort of the Ohio State Bar Ass'n and the Ohio State Medical Ass'n

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