A recent English case, "The common law is tolerant of much illogicality, but no system of law can be workable if it has not got logic at the root of it." Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd. (1964)


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What if an illness or an accident leaves you in a coma? Would you want to have your life prolonged by any means necessary, or would you want to have some treatments withheld to allow a natural death? What if you are dying from a painful terminal illness? Would you want to receive medical procedures to prolong your life?

An advance directive allows you to give instructions to your health care providers and your family on these topics. You can give them instructions about the types of treatments you want or don't want to receive if you become incapacitated. Usually, directives will only go into effect in the event that you can't make and communicate your own health care decisions. Up until then, you can continue to give directions to your health care provider even though you have an advance directive.

Hospitals and other health care providers are required under the federal Patient Self Determination Act to give patients information about their rights to make their own health care decisions. That includes the right to accept or refuse medical treatment. If you have executed a Living Will, Health Care Power of Attorney, or Advance Health Care Directive, your health care provider may ask you for a copy.

Types of Advance Directives

The term advance directive can describe a variety of documents. Living Will and Health Care Power of Attorney documents are types of advance directives. Some states also have a document specifically called an Advance Health Care Directive. So, the term advance directive may be used to refer to any of these specific documents or all of them in general.

States differ widely on what types of advance directives they officially recognize. Some states also require that you use a specific form for the format and content of your advance directive. If you have specific questions, contact an attorney who is familiar with your state statutes regarding advance directives.

Living Will

A Living Will allows you to state whether you want your life prolonged if you will soon die from a terminal illness or if you're permanently unconscious. In general, a Living Will indicates whether you want certain treatments withheld or withdrawn if they are only prolonging the dying process or if there is no hope of recovery.

As a general rule, Living Wills only go into effect if you're no longer able to make your own health care decisions. For example, if you suffer serious brain damage in a car accident or suffer an incapacitating stroke, you may be permanently unconscious and unable to communicate with your doctor. In this case, a Living Will lets your physician know your wishes concerning certain medical procedures.

Health Care Power of Attorney

A Health Care Power of Attorney (HCPOA) allows you to name someone (an Agent) to make health care decisions for you if you are unable to do so. The HCPOA is more flexible than a Living Will and can cover any health care decision, even if you are not terminally ill or permanently unconscious. A HCPOA can apply in cases of temporary unconsciousness or in case of diseases like Alzheimer's that affect decision making. Like a Living Will, HCPOA's often allow you to state your wishes about certain medical procedures. Also as with the Living Will, a HCPOA generally only goes into effect when you are no longer able to make your own health care decisions.

Advance Health Care Directive

An Advance Health Care Directive combines the features of a Living Will and a Health Care Power of Attorney along with some other options. Some states have a specific advance directive form.

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Choosing an Agent

Choosing an Agent for your Advance Directive could be one of the most important decisions you ever make. Unless you state otherwise in your directive, your Agent generally has the same authority to make decisions about your health care as you would. Since this person will be acting on your behalf if you become unconscious or unable to make health care decisions, this should obviously be someone you know and trust thoroughly. Your Agent should also know you very well--well enough to be able to make the same kinds of decisions you would. And he or she should be someone who cares deeply about your welfare. People often choose their spouse or other close family member to be their Agent.

You can limit your Agent's authority if you choose to do so. For example, you could specify that your Agent will not have authority to override your desire not to be put on life support equipment.

You should make sure the person you choose is willing to be your Agent. Discuss your wishes and values with him or her in advance so he or she can make the right decisions for you. Your Agent should be an adult and cannot be your health care provider (unless that person is a family member). It is also a good idea to designate an alternate Agent in case your Agent is not able to act as your Agent for any reason.

Finalizing the Directive

Once you've completed an advance directive, there are a few final steps you should take to make it effective:

Discuss your advance directive with your doctor before you sign it. Make sure you are both comfortable with what it says. He or she may suggest something you hadn't thought of that you might decide to include.

Comply with your state's signature and witness requirements. States have various requirements about who can be a witness, how many witnesses are needed, and if the directive must be notarized.

Provide copies of the signed directive to:

1) your doctor and hospital;
2) your Agent if one is named;
3) family members, and;
4) other significant people in your life.

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