New Colorado Living Will Law

On May 5, 2010, Colorado adopted The Colorado Medical Treatment Decision Act. It was adopted because of recent changes in available medical technology which make it possible to prolong the dying process, as well as, the medical privacy protections under the HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996", commonly referred to as HIIPA. It also deletes the "Declaration As To Medical and Surgical Treatment" form from Colorado's Statutes.

Under both the new and old law, a Declaration, only takes effect after the attending physician and one other physician to have a "Terminal Condition or be in a "Persistent Vegetative State." "Terminal Conditions" are defined as those conditions that are "incurable or irreversible, for which artificial feeding or hydration will only prolong the dying process."

A "Vegetative State" occurs when a comatose and brain-damaged patient has progressed to a wakeful state without any detectable awareness. A patient who has been in a vegetative state for 30 or more days is said to be in a "Persistent Vegetative State." These patients lack cognitive functions, retain the ability to perform certain involuntary actions. They are not "brain dead", because their lower brain stem is still functioning. These patients can still open, blink, move and track objects with their eyes. They can breathe on their own, and move their limbs as a reflex. Finally, they can make noises such as grunting, moaning, or even laughing. However, these patients do not respond to any external stimuli.

Colorado will still honor living wills drafted under the old statutes, provided that they are signed and witnessed by two people, as well as, living wills from other states. Also, the statute now provides for living wills, HIIPA releases, durable medical powers of attorney, and an organ donation form to be incorporated in the same document. This should be helpful to medical personnel, as well as, the patient's family members since only one document, rather than four, will need to be provided to the patient's physician. This should also reduce the chances of having one document contradict provisions in the other documents.

Under the new law, a patient can choose to have artificial feeding and hydration continue until death, for a specified period of time, or to forego it entirely. However, if the patient's medical provider determines that the discontinuance of artificial nutrition and hydration is causing the patient to suffer pain, they may continue it to the extent necessary to relieve that pain.

In a situation where a pregnant woman is in a persistent vegetative state, the new law requires a medical evaluation to determine the viability of the fetus. In the event that it is viable, the declaration will have no force and effect until the patient is no longer pregnant.

The new law provides significant protections for physicians and healthcare providers who rely in good faith on the instructions contained in a living will. It provides for criminal and civil immunity, and protection from licensing sanctions.

Life insurance companies may not require patients to execute a declaration, or use the withdrawal or continuance of life-sustaining procedures to refuse to issue a policy or delay payment of claims. Also, a patient's decision to withdraw life-sustaining procedures is not considered as suicide. Under many policies, if an insured commits suicide within 2 years of the date that their life insurance policy is issued, deaths due to suicide are excluded from coverage.

Health insurance companies are also forbidden from requiring patients to execute a declaration in order to obtain or continue coverage. Also, they cannot use a policyholder's decision to execute or not execute a declaration as the basis for any increase in premiums.


The Johnson Law Firm LLC (http://www.johnsonlawfirm.com), 4610 S. Ulster Street, Suite 150, Denver, CO 80237. (303) 770-4417