Living wills and next of kin...are parents the default next of kin?

General Questions
#1

With all of the talk about the Terry Schiavo case in the news, I was thinking about Living Wills and who I would trust to carry out my wishes if I were incapacitated.

I’m unmarried, no SO, no kids and I live alone. Both of my parents are alive, as are my brother and sister. I’m estranged from my father, who is still married to my mother. I live in PA.

My question is this: if I were to fill out a Living Will and give it to all of the approrpriate people, who would be considered my next of kin for medical decision purposes? My parents? If the task falls to my parents by default, and my parents disagree on whether to keep me on life support, who gets to decide?

I know that there is a separate designation aside from the Living Will where I can assign a specific surrogate to make medical decisions for me. If I were to assign my mother as my surrogate, would she alone be making decisions for me, or could my father interfere? If I specifically assign my brother to act on my behalf instead, can either of my parents interfere if they disagree with how he’s handling my affairs?

I’ve also heard that these assignations aren’t ironclad in any case, and in spite of me making all of my wishes known, the person I assign responsibility to can still toss my wishes in the trash and do what they want. How true is that statement?

#2

Sheesh…no takers? This thread plummeted to page 3 within 12 hours…that’s gotta be some sort of record. :smiley:

#3

Laws vary among the states regarding living wills and health care proxies. Here is some information said to be vaild for Pennsylvania, from the Eastern Paralyzed Veterans Association. There is quite a bit of information there; I’ll just paste one paragraph.

I was unable to find a Pennsylvania .gov site for the information but there probably is one. I hope others with more information will add to this thread.

#4

OK Jadis, I’ll give it a go.

Like you I am single, no kids, girlfriend but not with me whilst I am working here. I didn’t even have a will before I came out here but made one to make things easier administratively for my loved ones if the worst happens. Lots of land mines still here :slight_smile: .

Anyway the Will made a couple of people Executors of the will. They basically are responsible for seeing my wishes are enacted, so can tell the solicitors (lawyers) what to do to achieve that.

On advice, I then separately gave those same people a “living will” or rather a Enduring Conditional Power of Attorney, to make decisions for me in the event of my being unable to. These are financial as well as lifestyle. Euthanasia is illegal in the UK so whilst I left instructions that I would not wish my life to be unduly prolonged if I was suffering that is as far as it goes I think. Apart from that I have left it all up to them as I cannot predict was situations might crop up.

Just as a Will can be challenged then I understood so could those acting under a Power of Attorney. I think the phrase is that they have undertaken a Duty of Care towards me, and can be challenged to show they are acting within my expressed wishes, and also reasonably/prudently. I am not sure what the scope is for a clash between those obligations.

I deliberately did not make my mother either an Executor or give her Power of Attorney. My father is no longer alive. I would not want her to have to deal with the clash between her duty and her feelings/duty as a mother. So one of my oldest friends and my older brother agreed to serve.

I don’t think there is any default person who authomatically gets these powers, I think you have to expressly grant such power. If you die without a Will in the UK then the law takes over as you have died intestate. If you die without a Living Will/Conditional Enduring Power of Attorney then the common law takes over as to what happens if you are incapacitated. I’m afraid I am no expert as to what that means, as I was doing something about it I felt I did not need to know!

Hope this helps some. If I were you I would try to take your parents out of it and find some close friends or other relations whom you obviously trust, who could take a more objective approach than they will find easy to do, should the worse happen.

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#5

It varies from state to state, but if one isn’t legally married the parents, if alive, are usually considered the next of kin. I think in a lot of jurisdictions, only one signature is required on consent forms for medical treatment. Of course, for controversial stuff, the other parent could take them to court.

So, in theory, if you don’t have a medical proxy or medical power of attorney, your parents could be fighting it out between them about what to do with you.

#6

Just addressing a small point here. Whether or not you have a “significant other” is legally irrelevant. If you have a spouse, that’s relevant. If you have a legally recognised domestic partnership that’s relevant (in some states). In no state is a “significant other” legally relevant. The lesson is, if you want your partner to have rights after you die, get married (if you can).

#7

There are actually two different concepts that are important here, appointing a health care decision maker for when you may be unable to make medical decisions and giving advance instructions about what you may wish if you are unable to express your medical wishes. These are addressed through two legal instruments (which may often be combined in one document).

The first concept is a health care proxy (or similar instrument). This is a document that essentially says that if I am in a medical condition in which I am unable to make health care decisions for myself, I appoint a particular person to make those decisions for me. This would typically apply whether the disability is short-term or long-term. If an adult does not have a health care proxy (or similar instrument) that is valid under state law, your “next of kin” generally has no legal right to direct your medical care (with a possible exception for your spouse in some cases). If there is no one legally designated to make medical decisions for a person, it may be necessary to apply to a court for the appointment of a guardian.

Once there is someone who can make medical decisions (the proxy), there is a question of how wide a scope of decision making the proxy should have. A living will (or similar instrument) provides an advanced direction to any interested party as to what the principal would want done. Under the law of many states, before some types of life support can be removed, there must be “clear and convincing evidence” that the principal would want it removed. This was explored in detail by the U.S. Supreme Court in the Cruzan case. Some states have statutes that expressly recognize a living will, and others will accept a formally executed document like a living will as clear and convincing evidence of the principal’s intentions.

Each state has a slightly different law on living wills and/or health care proxies. For instance, in New York there is a statute on health care proxies, which does not provide for a separate living will, but allows a proxy to have a section that with directions to the proxy, which can be used for the same sort of advance instructions as in a living will.