Living Wills

2006

Minnesota Legislature made a significant change in the Living Will statute. This statute effectively eliminates living wills as we know them and substitutes a better document in their place.

To understand this legislation, a few terms must be defined. A Living Will (also known as a Health Care Declaration) is a document in which people give instructions regarding their heath care. It applies only in situations where the individual is in a terminal condition and is unable to communicate his/her own wishes. People typically gave detailed instructions regarding the applicability of life support measures, such as naso-gastric tube feeding, electric or mechanical resuscitation of one's heart, mechanical respiration, etc.

A Health Care Power of Attorney is a document whereby people authorize another person to make health care decisions for them. These apply whenever the person is unable to communicate their own wishes, regardless of whether they are in a terminal condition. No specific instructions regarding health care are typically included.

In August 1998, the health care directive landscape changed. First, Living Wills executed after that date may not be effective. Living Wills executed before that date will still be given effect. Second, features of the Living Will and Health Care Power of Attorney have been combined into one document. This document is called a Health Care Directive.

In a Health Care Directive, a person can give detailed instructions regarding their health care and nominate a person to make health care decisions for them if they are unable to communicate their wishes. Unlike the old Living Will, the Health Care Directive does not require that the person be in a terminal condition to be effective.

This legislation is a vast improvement over existing statutes. Until now, many people had heard of living wills and wanted them done. However, their effectiveness was limited because both of two conditions needed to be present: the inability to communicate their own health care wishes and existence of a terminal condition. The reality is that living wills simply did not apply to many situations.

In addition to naming a health care agent and giving health care instructions, the Health Care Directive:

allows the form to be used to make anatomical gifts, mental health directives and funeral directives
provides for the designation of an alternative agent to act in the event the named agent is not reasonably necessary
provides for directions in the case of joint agents as to the process by which they are to make health care decisions

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