Living Wills and Idaho’s Natural Death Act
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here for a printable PDF version of this information)
We plan for many important
events in life. We plan for retirement, a wedding, vacations, and for a
child’s education. Sadly, the health choices that are made at the end of
life are seldom planned and many times they are made for us. Decisions are
put off and desires are not expressed because it is difficult to
contemplate or discuss death.
 There are many things to plan
for at the end of life. Transfer of property and the well being of a
spouse or child are all issues to be considered and planned for. However,
the topic discussed here involves end of life health care issues, the
importance of living wills, and advance directives. The principle way to
ensure that your desires are fulfilled if you are no longer able to
communicate your wishes is through a Living Will.
Idaho law provides for
individuals to ensure that their wishes about their healthcare are carried
out in the event they become incapacitated and are not able to speak for
themselves. Generally, there are two kinds of Advance Directives. The
first is called a Living Will, and the second is called a Durable Power of
Attorney for Health Care. During the 2005 Idaho Legislative
session, a modification was made to the Natural Death and Medical Consent
Act. Consequently, in Idaho, it is now possible to complete
one (1)
form for both a Living Will and a Durable Power of Attorney for
Healthcare.
A Living Will sets forth your
instructions for dealing with life-sustaining medical procedures in the
event you are unable to decide for yourself. A Living Will directs your
family and medical staff on whether to continue, withhold, or withdraw
life-sustaining systems, such as tube feeding for hydration (water) and
nutrition (food), if you are incapable of expressing this yourself due to
an incurable and terminal condition or persistent vegetative state.
A Durable Power of Attorney
for Health Care allows you to appoint a person to make all decisions
regarding your health care, including choices regarding health care
providers and medical treatment, if you are not able to make them yourself
for any reason.
You should not execute an
Advanced Directive without having first thought about end of life issues,
considered your personal values, and discussed your end of life wishes
with your family, physicians, attorney, and clergy.
Download
the Living Will and Durable Power of Attorney for Health Care form
Frequently Asked Questions
When does a Living Will take effect?
When does a
Durable Power of Attorney take effect?
If my living will says to withhold medical treatment, will medical
personnel, such as paramedics, withhold treatment based on a living will
alone?
Am I eligible to have a Living Will?
What
is the difference between a Living Will and an ordinary will?
What life support choices do I have within my Living Will?
What if I am pregnant when I become incapacitated?
What if I change my mind about my options?
Who can I appoint to be my Health Care Agent?
When do my Health Care Agent’s responsibilities and authority begin?
Must a Living Will be witnessed or notarized to be valid?
Do I need a lawyer to draft a Living Will for me?
What if I already had a Living Will before the new legislation?
What if I have a Living Will that was created in a state other than Idaho?
If I do not have a Living Will, and am unable to communicate, can a family
member still make health care decisions on my behalf?
What if the executor of my Living Will is somehow incapacitated and unable
to communicate my desires?
When does a Living Will take effect?
Your Living Will takes effect when two medical
doctors certify that you have a terminal and incurable illness or you are
permanently unconscious or in a persistent vegetative state.
When does a
Durable Power of Attorney take effect?
Although both a living will and Durable Power of
Attorney are available on the same form, they have separate legal
significance. The Durable Power of Attorney takes effect when you are no
longer able to communicate with your healthcare provider.
If my living will says to withhold medical treatment, will medical
personnel, such as paramedics, withhold treatment based on a living will
alone?
No. As noted in the answer to the first question,
a living will is not self-activating. It takes effect only when two
doctors have certified that you have a terminal condition and that death
is imminent. When conditions are met, a Do Not Resuscitate (“DNR”) Order
is issued by your physician. In Idaho, DNR Orders are often included in
Physician Orders for Scope of Treatment (“POST”). The POST form can be
obtained only through a physician. It is completed and signed by a patient
or his/her representative and the patient’s physician and acts as the
physician’s standing orders. Paramedics will comply with the instructions
provided on a POST form but will not generally follow directives in a
living will.
Am I eligible to have a Living Will?
Anyone over the age of 18, that is of sound
mind, and acting of his or her own free will, can complete a Living Will.
What is the difference between a Living
Will and an ordinary will?
A Living Will only specifies
healthcare wishes. An ordinary Will deals with the disposition of property
upon your death.
What life support choices do I have within
my Living Will?
There are three different
choices you can make in regards to life-sustaining measures:
Option 1 - It is your desire to have doctors do everything in their
power to keep you alive.
Option 2 - The only life-sustaining measures you desire to have is
artificial tube feeding for nutrition (food) and hydration (water).
Option 3 - You wish to have all artificial life-sustaining treatment
withheld, including nutrition and hydration.
No matter which of these three options you choose, you will always
be provided all necessary pain medication and comfort medication.
 What if I am pregnant when I become
incapacitated?
Life sustaining measures
will continue regardless of any directive to the contrary until the
pregnancy is complete.
What if I change my mind about my options?
If at any time while you are
of sound mind and acting of your own free will, you can make a new Living
Will. At any time you may revoke or terminate an existing Living Will
without creating a new one.
Who can I appoint to be my Health Care
Agent?
The choice of an individual
to serve as your Health Care Agent is a very important one. You should
discuss your wishes at length with the individual you plan on appointing.
Make sure the person you plan to appoint is comfortable with the
directives in your living will and is willing and able to carry out your
wishes. It is also recommended that you discuss your options and wishes
with your family, physicians, attorney, and clergy. None of the
following people may be designated as your agent:
-
your doctor
or other treating health care provider;
-
a
non-relative employee of a hospital, your doctor, or other treating health
care provider;
-
an operator
of a nursing home, assisted living facility, or community care facility;
or
-
a
non-relative employee of a nursing home, assisted living facility, or
community care facility.
When do my Health Care Agent's
responsibilities and authority begin?
The only time your agent
will be able to make decisions is when you are unable to make your own
decisions.
Must a living will be witnessed or
notarized to be valid?
No. As a result of changes
to Idaho law made by the 2005 legislature, it is no longer necessary to
have either a witness to your execution of a Living Will, nor to have your
signature notarized. Having your signature on your Living Will witnessed
or notarized is a good idea, and is certainly permissible, but is not
necessary.
Do I need a lawyer to draft a living will
for me?
No. The assistance of a
lawyer in drafting any legal document is always a good idea, but is not
necessary. A Living Will is a document of great importance and significant
ramifications. Discuss your wishes and what you want included in your
living will with your family, trusted friends, your physician, your
clergy, and your lawyer.
What if I already had a living will before
the new legislation?
So long as the living will
was in compliance with the existing law at the time it was executed or if
it substantially conforms to the new law then it is valid. It is
recommended that you review your living will and confirm that it
substantially meets the requirements of the new law.
What if I have a living will that was
created in a state other than Idaho?
If the living will created
in a state other than Idaho conforms substantially to Idaho’s living will
statutes then it will be recognized as valid.
If I do not have a living will, and am
unable to communicate, can a family member still make health care
decisions on my behalf?
Yes.
Idaho Code § 39-4504 provides a list, in order of authorization, that allows for an individual
to deny, or consent to care, for a second individual who has been rendered
unable to communicate. The issue is always made more complex in the
absence of a Living Will or other written directive from you.
What if the executor of my living will is
somehow incapacitated and unable to communicate my desires?
The law provides that your
living will may list alternates should the primary executor be unable to
communicate your desires. If, for some reason, none of the executors
listed in your living will are able to communicate your desires then the
authorization will pass on to the next available individual as listed in
Idaho Code § 39-4504.
Link to
Idaho's Medical Consent and Natural Death Act
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