Legal, Ethical and Social Issues of the Advance Directives and Living Will Policy
The development of Common Law is dynamic and among the major objectives of its ever-lasting enhancement and refinement are the constant attempts of the drafters to preserve as many rights of individuals as possible. In accordance with the popular legal doctrine of inalienability of the legal rights, a human being cannot be deprived of his or her rights on the basis of being no longer capable of realizing the nature of his or her actions. In general, legal instruments known as advance directives, living wills and their derivatives in the forms of powers of attorney and healthcare proxy are aimed to protect the rights of an individual if he or she becomes physically or mentally unable to perceive the nature of his or her actions and to take control over them. The discussed documents can be viewed as an encapsulation of the explicit and mandatory instructions of a human being if his full legal capacity will become limited for the medical reasons.
The Differences between the Advance Directive and the Living Will
Although these instruments do seem to be almost similar in their natures, several important divergences exist among them, and they shall be outlined. To be more specific, while the advance directive may regulate all aspects of the life of the individual, his or her property and non-property rights, the living will precisely stipulates what actions shall be taken in terms of his or her medical treatment (Childress, 1989).
Another difference between these issues is that while advance directives are only legally monitored by the authorized government agencies, living wills are subjected to the most rigorous medical approval since its content shall be fully consistent with the prevalent contemporary medical practice, as well as with the federal and the state laws.
Ethical Issues of the Instruments
The United States Bar Association has conducted a number of researches with the intent to discover whether the discussed instruments are fully compatible with the existing and valid standards of medical and legal ethics. Several factors were taken into consideration when the research was under way. The first attempts to validate them took place in 1969, when the pioneer of the field, Luis Kutner firstly discussed the issue. In Harvard Law Review, he was the first who perceived the importance of the notion and outlined the first causation with the pending legal and general ethical prescriptions.
The only existing ethical limitation detected is the prohibition to compose such documents in the event a targeted person is already legally incapacitated or if there are reasonable grounds to assume that the targeted beneficiaries are likely to abuse their rights and utilize the authorities granted for them to the detriment of the person who signs the document.
The popularity (almost 41% of the United States population have such documents) and the fact that even the United States President Barack Obama himself has signed the living will indicates that the public perception totally annihilates all emerging ethical doubts of the problem. The double-accent shall be made on the fact that ethics is always in direct causation with the public opinion. Since the public opinion fully approbates this policy, it is reasonable and sound to assume that the policies are fully conformable with the existing and emerging principles of ethics.
Legal Issues of the Instruments
Having regarded legal side of the problem, several key aspects must be elucidated. On the federal level, there is neither law nor any other legal instrument which makes the composition of the discussed documents binding for the citizens of the United States of America or for the expatriates who are rightfully residing on the territory of the country. The Congress of the United States vigorously debated over the fact that hypothetically the policy should be made obligatory for the entire community of the United States (Furrow, 2000). While the Republicans consider that it shall become compulsory for any citizen of the United States of America, the Democrats have a steadfast opinion that this option shall be exercised at the discretion of the interested party. Most importantly, it is routinely discussed whether this notion should be applied to the specific professions due to the increased importance for the community (Brashear & Tennyson, 1969). In particular, it has been proposed to make the composition of such documents obligatory for the police and army officers, for the state servants and those whose professional duties are essential for the effective functioning of the communal institutions.
This chapter of the paper outlines typical living will of a fully capacitated person usually completed in the medical institutions by the people who suffer serious medical disorders which may lead to the loss of this capacity in the long run.
“I (the person who makes the declaration), herein after referred to as " the declarant" being of sound reasonableness and full realization of my actions, without any duress, freely and expressly make impose this revocable statement to declare that if I become mentally or physically unable to take and to declare my own resolutions and decisions on the procedures connected with the life support, then the process of my natural death will neither be artificially delayed, nor prolonged nor extended by the medical and paramedical staff of the company.
If I am not physically and medically incapable of delivering and explaining my own resolutions and decisions with regard of my own life and the linked utilization of the relevant medication tools and other life- support connected procedures, and if I am diagnosed with illness, ailments, disease or heavy injury corroborated by three physicians or registered medical doctors (or more, if required by the valid applicable law and relevant codes of medical ethics) and the state of my health implicates that no prospective and reasonable probability of my full recovery does not exist, or I fall into a permanent vegetative state, then provided that this will is not superseded by another one signed and corroborated by a public notary all related procedures of medical sustaining of my life and all support systems, operations, surgeries and procedures are to be terminated, unless otherwise is fixed in other provisions of this will or if this will is ultimately revoked by the subsequent one.
The detailed instructions with regard to the specific medical actions and deeds that shall be undertaken with regard to my health in the event I fall into the above described condition are encapsulated in the attached appendix…”
The Declarant “Signed”
Notary public “Signed”
Having explored the importance of the living wills and advance directives, it can be inferentially concluded that with regard to the recent advancements in the legal system of the United States of America, the essentiality of these instruments has become undeniable. Special attention shall also be laid on the fact that recently the number of physical and mental disorders of the USA citizens that fully inhibit normal reasoning of the affected people, these remedies can be regarded as sole remedies to tackle the problem (Beltran, 1994). I.e. when the medical staff of the clinic in where a drafter of living will is placed shall know how to proceed with the patient and not to violate ethical prescriptions and the applicable legal provisions.