Idaho Living Will - Limited to Only 3 Choices?

A living will is a legal document that tells others what your personal choices are about end-of-life medical treatment. It lays out the procedures or medications you want—or don’t want—to prolong your life.  

The Living Will is effective in Idaho when you are unable to communicate your instructions and: 

a. You have an incurable or irreversible injury, disease, illness or condition, and a medical doctor who has examined you has certified: 1) That such injury, disease, illness or condition is terminal; and 2) That the application of artificial life-sustaining procedures would serve only to prolong artificially your life; and 3) That your death is imminent, whether or not artificial life-sustaining procedures are utilized. 

OR 

b. You have been diagnosed as being in a persistent vegetative state. 

Pretty dire circumstances, I know. And difficult to think about. But nevertheless, everyone should take a few minutes and quickly put one of these documents in place. Everyone. 

 In Idaho, there is a statutory form, a form that people are required (for the most part) to use when drafting their Living Will. You can find and download this form here: https://sos.idaho.gov/hcdr/LivingWill_DurablePowerOfAttorney.pdf. As you can see, there is actually two forms in one here: 1) Living Will, and 2) Durable Power of Attorney for Healthcare decisions. 

Let’s discuss the difference between these two documents: a Living Will, as set out above, is only effective when certain conditions are met. A Durable Power, by contrast, designates for you a healthcare agent. A healthcare agent, under a Durable Power of Attorney, will be able to make healthcare decisions for you when you are incapacitated or unable to make your own decisions. You can give your agent broad powers, specific powers, or limited powers. 

So what’s the difference between these two forms? 

let’s say you are in a vegetative state (but not a “persistent” one) and a doctor believes that in order to treat you, you need surgery. A person you designate using a Durable Power of Attorney can make the surgery decision for you. 

However, let’s alter these facts. Let’s say that you are in a vegetative state (and it’s “persistent”), but this time a doctor has deemed that you have an irreversible injury, and the doctor who has examined you has also certified: 1) That such injury is terminal; and 2) That the application of artificial life-sustaining procedures would serve only to prolong artificially your life; and 3) That your death is imminent, whether or not artificial life-sustaining procedures are utilized.  Under these conditions, now your Living Will kicks in and makes the decisions for you. That is, your agent is no longer making your decisions. Your Living Will document is. 

So, what kind of decisions can you make in this Living Will Document? 

As you can see, if you follow the link above, there are three choices on the Idaho form. Choice 1 directs the doctor to administer hydration and nutrition through tubes. Choice 3 directs the doctor to not provide hydration and nutrition under these circumstances. And then Choice 2 is a custom option: you can direct the doctor to just administer hydration, or just nutrition. That’s it. Those are the decisions you can make. 

I had a client recently ask me: “What if I want nutrition and hydration for 3 months, just to see if I miraculously come out of the vegetative state? Can I have the caregivers apply box 1 for 3 months, and then switch to box 3?” Good question. 

Outright modification of the Living Will portion of the form is likely very problematic. That is, you probably don’t want to download the document, then delete the three boxes, and add your own description of what you want to happen. The law says that the Living Will needs to be substantially in the form that is set out in the link above, but the law also says that providers can rely without liability on a facially valid form. Healthcare providers know what the standard form looks like, and they probably get very nervous if it doesn't look very close to or even exactly like the 4,000 other forms they have seen before. So, as a practical matter I would very likely not try to substitute language on the Living Will portion of the form.

So, no Customization?
Perhaps some additional language to the Durable Healthcare POA portion of the form could help (talk to your estate planning attorney).  As you can imagine, much medical care commences well before Living Will status is reached, if it ever is, and that can guide the agent to get to the correct results. Many or even most people approaching end of life end up in hospice rather than reaching Living Will status. And providers are probably not eager to make the statements required for Living Will status to be invoked.  Moreover, it is very feasible to imagine that if Choice 3 is picked, but family is not ready, caregivers will work with the family for a reasonable time, usually by keeping nutrition. That means Choice 3 is a more flexible option than the form and law would appear to be. 

Therefore, if you are like my recent client, and want to give yourself a little time, but don’t want to be in a persistent vegetative state for years and years, perhaps Choice 3 is for you. In addition to selecting Choice 3, though, you MUST, MUST, MUST have detailed conversations with the agent(s) you have selected in your Durable Power of Attorney and work with an attorney when drafting your Durable Powers. The agents need to know what you want under a variety of circumstances. An awkward conversation, I’m sure. But it will help the agent tremendously. They need confidence under these difficult circumstances to make the right choices. The reality is care continues until the agent signs the release forms authorizing the withdrawal of care.  If the agent says, let’s give it x amount of time and reassess . . . “ then giving it x amount of time is what likely will happen.  

Atkins Law Offices is here to help you and educate you during the planning for difficult times such as these. This consideration laid out above is one of the several issues that should be considered when executing a Living Will and a Healthcare Power of Attorney in Idaho. So, get help with these forms now. Talk to your Estate Planning attorney or Reach out to us for a 30 Minute Free Consultation. 

In addition, you can also get help from Idaho Legal Aid here; https://www.idaholegalaid.org/topics/2567/living-willsadvance-directivespowers-attorney