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The following articles were written by former Probate Judge Merri Rudd.

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Advance Health Care Directives

11:10 AM
Merri Rud

Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.

Q: Many years ago, you conducted a meeting for senior citizens on the need to have living wills. At that time, you recommended a form developed by the University of New Mexico. The Schiavo event has highlighted the need for a living will. It seems that each Albuquerque hospital has its own version of a living will. Is there a revised or updated version that people need to use that all medical institutions will accept? R.D.S., Albuquerque

Your question is timely and critically important. Terri Schiavo's case illustrates the importance of putting one's wishes about health care in writing and the potential consequences for not doing so. In the 1990's Nancy Cruzan's case also focused national attention on these issues.

In the Cruzan case, the U.S. Supreme Court stated that people have "a constitutionally protected liberty interest in refusing unwanted medical treatment." In Cruzan's case, since Nancy had no written directives, "clear and convincing" evidence of Nancy's wishes was established through oral testimony of family and friends. With the consent of her family and physicians, Nancy's feeding tube was disconnected after a lengthy court battle with the state of Missouri. Different states can require different evidence about how to express one's wishes.

In 1995 New Mexico's law regarding health care documents changed. As New Mexicans, we all need to update our terminology. Many people confused the term "living wills" with living trusts and last wills and testaments. Other parts of the country may still use the term "living will," but in New Mexico these documents are now called "advance health-care directives."

New Mexico's former "Right to Die" law that authorized right-to-die statements (or living wills) was repealed after being replaced by the Uniform Health-Care Decisions Act (UHCDA). Right-to-die statements or living wills created prior to UHCDA should still have effect, but people may want to update their documents under the current law.

Updating documents is wise because the old right-to-die statements or living wills that you mention only apply if a person is certified in writing by two physicians to be terminally ill or in an irreversible coma. These old documents may not apply to a case like Schiavo because a persistent vegetative state is medically different from an irreversible coma (I consulted a doctor about this).

New Mexico's UHCDA allows a "right to die" under a broader set of circumstances than New Mexico's former law. UHCDA allows one to give "instructions relating to life-sustaining treatment, including withholding or withdrawing life-sustaining treatment and the termination of life support." "Life-sustaining treatment" is defined as "any medical treatment or procedure without which the individual is likely to die within a relatively short time, as determined to a reasonable degree of medical certainty by a primary physician." Additionally, an individual may give "directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care."

Although UHCDA allows a person to give oral instructions, Terri Schiavo's case has prompted many people to talk with family members or health care decision-makers and to put their wishes in writing. I wholeheartedly agree that written directives help ensure that one's wishes are honored.

UHCDA also authorizes written "advance health-care directives." There is not a required directive form. Hospitals should accept any form that is signed by the patient. Witnesses are optional, but recommended. One advance health-care directive form allows people to:

  • designate an agent in a health care power of attorney to make decisions for a person;
  • state one's wishes about end-of-life decisions and whether or not to prolong life;
  • specify whether or not one wants artificial nutrition or hydration;
  • request pain relief; and
  • choose to make an anatomical gift.

Free copies of an advance health-care directive can be printed in English or Spanish from UNM's Health Sciences Center web site: http://hsc.unm.edu/ethics/advdir/adv_dir.shtml. Those without computers can obtain copies of these forms by calling 272-4566.

Forms can also be printed for free from my publishing company's web site, www.abogadapress.com. Click on "Forms."

© 2005, Merri Rudd & Albuquerque Journal, All Rights Reserved 


Appeared April 21 2005, Albuquerque Journal, Business Outlook 

Reprinted with permission

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