State Laws Governing Living Wills Are Variable

Documents spell out a person's wishes regarding health-care treatment in a life-threatening emergency

LIVING wills - legal documents that spell out a person's wishes regarding the type of health-care treatment he or she would prefer in event of a life-threatening situation - have become increasingly popular.

Having some form of health-care directive ''is critical for just about everyone, whatever a person's age,'' says Deena Katz, president of Evensky, Brown & Katz, an investment advisory firm in Coral Gables, Fla.

Talking about living wills is ''not always easy,'' because of the sensitiveness of the subject matter, Ms. Katz says. ''We find that many people don't even have a will, let alone a living will,'' she says. But providing such specific instructions ''should be a regular part of a person's estate planning.'' Having the document allows you - not another person you may not even know - to decide exactly what type of health-care treatment, or waiver of treatment, you wish in event of unforeseen circumstances, Katz says.

The term ''living will'' is actually somewhat of a misnomer, since it usually refers to two distinct legal documents, says John McCabe, legislative director and legal counsel with the National Conference of Commissioners on Uniform State Laws (ULC), a legal group in Chicago.

The two documents:

* Living will. This legal instrument spells out your health-care wishes, such as in the event of a potentially terminal situation.

* Health-care proxy. This document allows you to designate another person as your proxy or agent regarding health-care decisions. It comes into play when you cannot act on your own behalf. The health-care proxy, Mr. McCabe says, is a variation on existing power-of-attorney laws regarding disposition of your financial affairs in event of incapacity.

Currently, there is no uniform national statute regarding living wills or health-care proxies, says McCabe. Rather, each state regulates living wills or proxy laws in its own way. The ULC has put together a ''model'' uniform statute that synthesizes existing laws and could be used nationally. Only two states, Maine and New Mexico, have adopted the model statute, according to Choice In Dying Inc., a New York advocacy group.

What that means, McCabe says, is that people seeking to establish a living will or health-care proxy would be wise to contact an attorney to determine the law in their state. The lawyer would then execute the proper documents.

While some states provide a simple form that can be easily filled out without a lawyer, many experts recommend that contacting an attorney may still be prudent. Relying on nonlegal advice, including magazine or newspaper articles, such as this article, is helpful only for obtaining background information. Your lawyer, or your state officials dealing with living wills or proxy statements, are the most authoritative sources of advice on this topic.

In some states, living-will documents can be obtained from the office of the secretary of state. In other states, you must contact your state Department of Public Health. As of March 1995, 45 states and the District of Columbia authorized both living wills and the appointment of a health-care agent or proxy, according to Deborah Kaufman, a spokeswoman for Choice.

Two states, Alabama and Alaska, have statutes authorizing only living wills; and three states, according to Ms. Kaufman, have statutes authorizing only the appointment of a health-care proxy or agent. They are Massachusetts, Michigan, and New York. Still, there is a common-law recognition of the right to have a living will in all three states, according to William Prip, a legislative expert with Choice.

In Massachusetts, for example, (in addition to the common-law recognition of a living will), the state has enacted a proxy law. That statute allows residents to make advance directives regarding the type of health-care treatment they would like at some future time, says Susan Stein, an attorney with the Massachusetts Department of Public Health, in Boston. The agent can make decisions based on the writer's instructions.

In New York State, the one-page proxy form is simple: It allows New York residents to appoint a specific person as a proxy or agent; it then allows them to specify the type of treatment they would like in event of a situation where they could not personally express their wishes. Residents must obtain the signatures of two witnesses, both 18 years of age or older.

Katz recommends that if your state provides both documents, you should have a living will and a proxy agreement.

What happens if a person is incapacitated while traveling in another state? Would the living will or proxy statement be honored? Probably. Carry a copy of your document with you, some experts say. All 50 states and the District of Columbia have a common-law recognition of living wills, Mr. Prip says. But there is, he says, no common-law recognition of proxy laws.

About 29 states, including such large-population states as California, New York, and Massachusetts, do have reciprocity provisions in state statutes regarding proxy laws.

Still, as a practical matter, Prip says, ''most hospitals or physicians will usually honor a person's written instructions regarding treatment. What they are most concerned about is [their] liability, and if a document exists, they will follow it.''

Once you have signed and properly witnessed your documents, you should make certain that the originals are stored in a safe and accessible place. A safe-deposit box would not be considered accessible. Let other people know your wishes. Provide copies of your documents to your lawyer, friends, and relatives.

At least once a year, check with your lawyer, or appropriate state agency, to make certain your directives reflect existing law.

To learn more about living wills, you might want to order a free copy of a useful pamphlet: ''Shape Your Health Care Future with Health Care Advanced Directives,'' issued by the American Association of Retired Persons (AARP).

Write to AARP Fulfillment, 601 E. Street N.W., Washington DC, 20049. Ask for pamphlet D15803.