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What's the Difference Between an Appointment of Health Care Representative and a Living Will?

Both an Appointment of Health Care Representative and a Living Will constitute advance directives. An advance directive is a written statement of a person’s wishes regarding medical treatment. It tells health care providers your wishes if you become unable to communicate your wishes.

What is an "Appointment of Health Care Representative"?

In the Appointment of Health Care Representative, you appoint someone to make health care decisions for you when you are no longer able to make them for yourself. That person is known as a health care representative. If your attending physician determines that you are unable to understand and appreciate the nature and consequences of health care decisions and to reach and communicate an informed decision regarding treatment, then your health care representative is authorized to make health care decisions for you.

What kind of health care decisions can your health care representative make?

A legally appointment health care representative can consent to any care, treatment, service or procedure to maintain, diagnose or treat an individual's physical or mental condition. The representative can consent or withdraw consent to any treatment of your physical or mental condition. Your representative can also decide whether to provide, withhold or withdraw life support.

In a Living Will, you tell the world that if your medical condition is ever deemed to be terminal, or if it is determined that you are permanently unconscious, you wish to be allowed to die and not be kept alive through life support systems. Terminal condition means that you have an incurable or irreversible medical condition which, without the administration of life support systems, in the opinion of your attending physician, will result in death within a relatively short period of time. Permanently unconscious means that you are in a permanent coma or persistent vegetative state which is an irreversible condition in which you are at no time aware of yourself or the environment and show no behavioral response to the environment.

How does the law define “life support systems” … the so-called artificial means of supporting someone’s life?

The law defines "life support systems" as: artificial respiration, cardiopulmonary resuscitation, artificial means of providing nutrition and hydration, kidney dialysis and antibiotics that are administered for a reason other than for your physical comfort. When someone signs a Living Will, these are the measures that they do not want if they are in a terminal condition, or permanently unconscious, and they are not capable of communicating their wishes to their doctor. Now that’s not to say that they don’t want things like pain medication or food (if they’re hungry) or something to drink (if they’re thirsty). They will still receive those things. They are simply telling the doctors and their loved ones that they do not wish to prolong their life by artificial means.

The law requires both an Appointment of Health Care Representative and a Living Will, to be signed before two disinterested witnesses. Why? Because if documents like these are ever challenged in court, the witnesses could potentially testify that you were of sound mind when you signed either document and you were able to understand the impact of each document at the time that you signed them.

Here’s where the Appointment of Health Care Representative and the Living Will intersect.

Your health care representative has a duty – under the Appointment of Health Care Representative – to enforce your wishes under your Living Will. In other words, your health care representative is your advocate in the health care system. He or she is there to make sure that your wishes under your Living Will are given effect. So, if you’re intent on having a Living Will for yourself, it makes sense to also have an Appointment of Health Care Representative, as well.

The elder law attorneys at Cipparone & Zaccaro recommend that you sign these documents well before a crisis occurs. Be sure to name a successor to your health care representative, just to make sure you have a back-up in the event that the first person is not around. Talk to the person that you intend to name as your health care representative, so that they understand your feelings about these “end of life” decisions.