Ohio has two legal documents that every senior citizen should consider executing – the Living Will and the Durable Power of Attorney for Health Care. Both have been in the news recently and are sometimes misunderstood.
Ohio’s Living Will becomes effective only when an individual is permanently unconscious or terminally ill. Permanently Unconscious, as defined by our Statute, means that to a reasonable certainty (1) you are irreversibly unaware of yourself and your environment and (2) there is total loss of cerebral cortical functioning, resulting in your inability to experience pain and suffering. Terminal Condition is defined by Ohio law to mean that you have irreversible, incurable, and untreatable condition caused by disease, illness, or injury and which to a reasonable medical certainty there (1) can be no recovery and (2) death is likely to occur within a short period of time if life sustaining treatment is not administered. With a valid and properly executed document, two doctors must agree that you are dying and beyond any medical help.
Ohio’s Durable Power of Attorney for Health Care differs from the Living Will in the sense that you need not be terminally ill or permanently unconscious for it to take effect. One simply may not be able to make his own medical decisions because he or she can not physically communicate their own wishes. Often, a spouse, relative, or a trusted friend is selected to act on your behalf. Many times, that person may authorize medical treatment or surgery; they may also authorize a change in doctors. Anyone may be appointed to act on your behalf, as long as it is not your doctor or the administrator of a health care facility in which you are being treated.
Both a Living Will and a Durable Power of Attorney for Health care can be revoked or changed by you at any time.
The Ohio State Bar Association and the Ohio State Medical Association have agreed upon the language of both documents. In order for the documents to be valid, certain language that is specified in the Ohio Revised Code must be included. Your doctor, hospital, or attorney should be able to assist you in finding a source for these documents. Once you have these documents, it is advisable to make executed copies available to family members and your family doctor. You may even record these documents in the County Recorder’s Office in which you reside.
A number of people are concerned with the issue that once they have a living will whether or not they can receive medication for pain. The answer is yes. If cessation of life support mechanisms becomes necessary due to a worsening condition, persons or family members listed in your living will must be notified of your desire to stop life support prior to following your instructions to withdraw life support. If that person does not believe your living will is legally valid, they may receive an immediate hearing in probate court to challenge it based on legal grounds. However, by statute, no one can change or overrule your living will if it was freely signed and properly executed.
Ohio’s Living Will also permits the withholding of nutrition and hydration if your condition becomes hopeless. This is mostly done by removal of internal feeding and fluid tubes. If you are permanently unconscious, as was discussed earlier and certified such by two doctors, your document needs to expressly state this desire to withhold nutrition and hydration. A proposal advocated in central Ohio is that all recorded Livings Wills and Durable Health Care Power of Attorneys be made available to hospitals via computer link at the time of emergency admission or check in at hospitals.