What Is A Living Will?

Colorado law[1] provides that any adult with decisional capacity may make advanced written decisions about the use of medical or surgical procedures when he or she has a terminal condition or is in a persistent vegetative state (PVS).

This written declaration is called a Declaration as to Medical Treatment and is commonly referred to as a Living Will.

A Living Will is clear and convincing evidence of a person’s wishes regarding end of life decisions.  It provides advanced instructions if life sustaining procedures and/or artificial nourishment and hydration should be withdrawn or withheld at a time a person has a terminal condition or is in a PVS, and lacks decisional capacity.  Decisional capacity is the ability to provide informed consent or refusal for medical treatment or the ability to make an informed health care benefit decision.

If the attending physician is presented with a Living Will and believes the patient has a terminal condition or is in a PVS, and lacks decisional capacity, the law requires the attending physician to order the patient to be examined by another physician.  If an attending physician refuses to comply with the Living Will, they shall transfer the care of the patient to another medical provider that is willing to comply with the declaration.   After examining the patient, if both physicians agree, they shall certify such fact in writing and enter it into the patient’s medical record with a copy of the Living Will.  The attending physician must immediately make a reasonable effort to notify at least one person that a certificate has been signed.  After forty-eight hours, if no action to challenge the validity of the Living Will has been filed, the attending physician shall withdraw or withhold life sustaining procedures or artificial nutrition and hydration according to the terms of the Living Will.

[1] This law known as the Colorado Medical Treatment Decision Act is found in the Colorado Revised Statutes at 15-18-101 et. seq.

Editor’s Note:  This article submitted by Jennifer S. Gormley, J.D., LL.M an attorney with the Law Office of Jennifer S. Gormley, P.C. who can be reached at 303-783-9600 or email info@elderlawsource.com