Living Will- Declaration Concerning Medical or Surgical Treatment

  1. Can only be set up while a person is competent to understand the consequences of the decisions.
  2. In order for a Living Will to become operative, four conditions must exist:
    1. The individual (the declarant who has signed the Declaration) must be terminally ill due to an incurable or irreversible condition.
    2. The individual must be unable to decide whether to accept or reject medical or surgical treatment.
    3. The individual must be unable to make that decision because of unconsciousness or incompetence.
    4. The individual, or one acting for the individual, must submit the Declaration to the physician for entry into the individual’s medical record.
  3. When these required conditions exist, the attending and one additional physician must:
    1. Certify the individual’s terminal condition in writing on the hospital record.
    2. Immediately attempt to notify the individual’s spouse, any adult child, parent or agent under a Medical Durable Power of Attorney (in that order) of the certification.
  4. After the physicians’ certification is made, a period of 48 consecutive hours is granted by law for a challenge to the validity of the Declaration.
    1. A parent, adult child, spouse or MDPOA agent may challenge the Declaration in the district court in the county in which the patient is located.
    2. A legal representative is appointed for the patient and notice is given to certain adult relatives.
    3. The court determines the validity of the Declaration.
  5. A physician, or a hospital or person acting at the physician’s direction, is free of criminal or civil liability for acting in accordance with a valid Declaration.
  6. In certain situations, the law allows the physician to take actions not specifically provided in the Declaration:
    1. If the declarant is pregnant and if life-sustaining measures would enable the fetus to develop and survive, the Declaration is not enforceable.
    2. If pain results from the discontinuance of artificial nourishment, the physician may order that nourishment be provided to alleviate the pain.
  7. A Declaration does not have to be notarized, but must be witnessed by two witnesses. Said witness shall not be:
    1. The attending physician or any other physician; or
    2. An employee of the attending physician or health care facility in which the declarant is a patient; or
    3. A person who has a claim against any portion of the estate of the declarant at his death at the time the declaration is signed; or
    4. A person who knows or believes that he is entitled to any portion of the estate of the declarant upon his death either as a beneficiary of a will in existence at the time the declaration is signed or as an heir at law.
  8. If the declarant is a patient or resident of a health care facility, the witnesses shall not be patients of that facility.
  9. In the event that the declarant is physically unable to sign the Declaration, it may be signed by some other person in the declarant’s presence and at his direction. Such other persons shall not be any of those listed in Paragraph 7 above.
  10. A Declaration may be revoked by the declarant orally, in writing or by burning, tearing, canceling, obliterating or destroying such declaration.
  11. Forms are available from hospitals, medical societies, the Guardianship Alliance and most stationery supply stores.
  12. It is wise to have both a Medical Durable Power of Attorney and a Living Will. The Medical Durable Power of Attorney gives someone (an agent) authority to make decisions; the Living Will sets forth one’s desires regarding life sustaining treatment and gives direction to the agent under the Medical Durable Power of Attorney.

Durable Powers of Attorney

  1. With a Power of Attorney, a person (the Principal) appoints another person or organization (the Agent or Attorney-in-fact) to act on his/her behalf in all matters as designated in the document. A person (the Principal) must have capacity to understand the consequences of the document.
  2. In Colorado, there are two Durable Powers of Attorney:
    1. Medical Durable Power of Attorney includes medical and personal decision-making authority which may be limited or broad.
    2. General or Financial Durable Power of Attorney includes decisions about money and property and can include other matters, except medical decisions.
  3. “Durable” means the agency continues if the principal becomes incapacitated. To be durable the document must contain wording such as “this power of attorney shall not be affected by the subsequent incapacity or disability of the principal.
  4. A principal may revoke any power of attorney at any time even if he/she is considered to be incapacitated by a doctor, caregiver or family. To make changes in a document, he/she must write a new one.
  5. An agent may not override the principal’s wishes even though the principal may be assessed as incapacitated.“Nothing in this section or in a medical durable power of attorney shall be construed to abrogate or limit any rights of the principal, including the right to revoke an agent’s authority or the right to consent to or refuse any proposed medical treatment, and no agent may consent to or refuse medical treatment for a principal over the principal’s objection.” C.R.S. 15-14-506.(4)(a)
  6. An agent has the same authority for medical treatment as a guardian. If another person is appointed as the guardian for the principal, the agent has priority for making medical treatment decisions unless the Power of Attorney is revoked by the court.
  7. An agent is obligated to follow the principal’s instructions when making decisions. Unless the DPOA states otherwise, the agent has the same authority to make decisions which the principal would make if able to do so.
  8. The appointment of a spouse as an agent dissolves on divorce.
  9. It is a good idea to designate a successor agent in the event an agent is unwilling, unable, or ineligible to act when a decision is necessary. A successor agent has the same authority as the primary agent.
  10. Powers of Attorney can be set up through an attorney knowledgeable about estate planning and health care issues or set up with preprinted forms which are available from hospitals, nursing homes, or the Guardianship Alliance.
  11. Colorado law does not require a DPOA to be witnessed, however, it is recommended that there be two witnesses or have the document notarized.

For more information please call 303-228-5382, or send an email.

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