Advance Medical Directives
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We all fear losing control of our decision making processes at the end of our lives, but most of us avoid
the relatively simple planning that assures that our wishes regarding health care will be followed. Preparing
for possible end-of-life decisions is not complex and is routinely part of estate planning. At the same time you and your
attorney prepare a will or trust to take care of your estate assets, you can execute documents that direct how you will be
cared for if you are no longer able to make decisions about your life and death. This planning is accomplished
through written documents called advance medical directives.
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These
documents are only valid if made while you are competent; they are not valid when executed if you are incompetent, suffering
from a physical or mental impairment that so affects your judgment and mental capacity that you are not capable of making
a rationale decision. It is a wise to get an attorney’s assistance to assure your health care power of attorney meets
the requirements of Indiana law and is in accord with your overall estate plan.
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Making
Treatment Decisions
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Under both Federal and Indiana law, you
may consent to or refuse any medical treatment, and receive information about the risks and possible consequences of the procedure,
about advance medical directives (such as living wills), and about life sustaining medical care and your right to choose whether
to receive it. No one else, not even a family member, has the right to make these kinds of decisions, unless you've been adjudged
incompetent or are unable to make such decisions because, for example, you're in a coma or it's an emergency situation. No
one can compel an unwilling adult to accept medical treatment, even if it means saving his or her life.
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The Living Will and Life Prolonging Procedures Directives
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A living will is a written declaration in which you state
in advance your wishes about the use of life prolonging medical care if you become terminally ill and unable to communicate.
It lets your wishes be carried out even if you become unable to state them. If you do not want to burden your family with
the medical expenses and prolonged grief involved in keeping you alive when there is no reasonable hope of revival, a living
will typically authorizes withholding or turning off life sustaining treatment if your condition is irreversible.
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Living wills typically come into play when you are incapable
of making and communicating medical decisions. Usually, you'll be in a state such that if you do not receive life sustaining
treatment (intravenous feeding, respirator), you will die. If your living will is properly prepared and clearly states your
wishes, the hospital or doctor should abide by it, and will in turn be immune from criminal or civil liability for withholding
treatment. Some people are concerned that by making out a living will, they are authorizing abandonment by the medical system,
but a living will can state whatever your wishes are regarding treatment, so even if you prefer to receive all possible treatment,
whatever your condition, it is a good idea to state those wishes in a living will.
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Indiana
has both a life prolonging procedure statute as well as a living will statute. The Indiana General Assembly has declared that
a competent adult has the right to control the decisions relating to the competent adult's medical care, including the decision
to have medical or surgical means or procedures calculated to prolong the competent adult's life provided, withheld, or withdrawn.
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A person who is of sound mind and is at least eighteen (18)
years of age may execute a life prolonging procedures will declaration or a living will declaration. The person signing a
living will is known as the “declarant”. Either of these documents must meet the following conditions: (1) voluntary,
(2) in writing, (3) signed by the person making the declaration or by another person in the declarant's presence and at the
declarant's express direction, (4) dated, (5) signed in the presence of at least two (2) competent witnesses who are at least
eighteen (18) years of age.
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A witness to a living will declaration
may not meet any of the following conditions: (1) the person who signed the declaration on behalf of and at the direction
of the declarant, (2) a parent, spouse, or child of the declarant, (3) entitled to any part of the declarant's estate whether
the declarant dies testate or intestate, including whether the witness could take from the declarant's estate if the declarant's
will is declared invalid, (4) Be directly financially responsible for the declarant's medical care.
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The
living will declaration of a person diagnosed as pregnant by the attending physician has no effect during the person's pregnancy.
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The life prolonging procedures will declarant or the living
will declarant shall notify the declarant's attending physician of the existence of the declaration. An attending physician
who is notified shall make the declaration or a copy of the declaration a part of the declarant's medical records.
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A living will declaration (1) does not require the physician
to use, withhold, or withdraw life prolonging procedures but is presumptive evidence of the patient's desires concerning the
use, withholding, or withdrawal of life prolonging procedures under this chapter; and (2) shall be given great weight by the
physician in determining the intent of the patient who is mentally incompetent.
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A
life prolonging procedures will declaration requires the physician to use life prolonging procedures as requested.
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You are encouraged to seriously consider creating an advance
medical directive because it permits you to exercise freedom of choice regarding your own medical care. You are not required
to have an advanced directive, and the final decision on this matter is yours.