What Is A Living Will?
Life support systems can keep a person’s body alive for years, even if the brain is dead or no longer functioning. As adults, we have the right to make decisions as to whether we would like to be kept alive when it is clear death is imminent, or if a permanent state of coma will persist.
A Living Will is not really a “Will.” Instead, it is a document that expresses a person’s desires and preferences about medical treatment in case he or she becomes unable to make their own decisions. It specifies whether you want to be kept on artificial life support if you become permanently unconscious, or are otherwise dying and unable to speak for yourself. It is called a Living Will because it takes effect while you are still living. These documents can appoint someone to make important health care decisions on your behalf if you are unable to do so. This person is often referred to as an attorney-in-fact or proxy for healthcare.
A Living Will cannot take effect legally unless the patient is medically determined to be in a permanent vegetative state or terminally ill, and unable to communicate medical preferences. The purpose of a Living Will is to make important health care decisions at a time when you are still competent to make them. It was created to spare someone who is incompetent and near death any unwanted suffering, medical treatment and health care expenses.
Health care providers can choose not to honor someone’s Living Will. In such an instance, the patient is usually transferred to another institution.
Living Will vs. Durable Power of Attorney
A durable power of attorney can perform some of the functions of a Living Will. It gives an attorney-in-fact legal power to make health care decisions for someone who cannot make those decisions himself or herself.
The difference between a durable power of attorney and a Living Will is that the durable power of attorney may direct the attorney-in-fact to carry out the Living Will’s instructions, or it may allow the attorney-in-fact to use his or her own judgment. A durable power of attorney may be used whenever the individual granting the power cannot make his or her own health care decisions. It does not depend on terminal illness or permanent unconsciousness to become effective. Most estate planning attorneys recommend both documents to cover all situations.
When choosing an attorney-in-fact, look to a trusted individual, such as a friend, relative or even a health care provider, who will be comfortable discussing health care issues. This person may be called upon to argue the patient’s case in front of doctors, other family members or the court. It is also a good idea to have a “back-up” attorney-in-fact, in case your initial choice is not able to assume the responsibility.
Who Should Consider A Living Will?
Having a Living Will is a personal decision. If you do not want your life placed in the hands of others, it is important to consider a Living Will. There are enormous emotional and financial costs associated with being kept alive when there is no chance of recovery. A primary reason for the creation of Living Wills is to avoid depleting an estate that could be passed to loved ones. If there are conditions under which you would not want treatment, it is important that you communicate your wishes while you are able to do so.
A Living Will supplements a regular Will, which becomes effective upon your death. In a sense, a Living Will is insurance against the frustration of the regular Will. It serves to prevent the Will’s creator from being kept alive, while on the brink of death, and the assets that would otherwise pass through the Will are drained on medical expenses. To fully protect yourself and to ensure that the property and real estate you have worked a lifetime to acquire serve the purposes you intend, we recommend you prepare a Living Will and an estate plan to be followed after death.
Expressing your wishes verbally is not enough. Wishes should be formally documented. People should make Living Wills regardless of age or current health status.
State Laws: Living Wills
A Living Will can also be called an advance health directive or health care directive, depending on your state of residence. Most states require that Living Wills be witnessed and notarized. While Living Wills are allowed in all states, they sometimes must follow certain formalities to be effective. Each state has its own Living Will document. It is important to understand the terms and conditions set forth by your state, and that your Living Will is drafted in your state of residence. If you move to a new state, you will have to update your Living Will. To see state specific Living Wills, one website to refer to is www.legaldocs.com.
Most Living Wills contain the following information:
- An individual appointed to direct the participant’s health care decisions should the principal be unable to do so; or
- Specific directions as to the course of treatment that is to be taken by caregivers, including concerns such as tube feeding, resuscitation, organ donation or, in some cases, forbidding treatment including food and water.
Without a Living Will (or durable power of attorney), family members can argue over what treatments should or should not be provided. Doctors will only consult family members on health care decisions. If you prefer a friend or unmarried partner participate in your health care decisions, a Living Will and durable power of attorney enables that person to have a say. To make sure that your full intent is accurately conveyed, it is wise to have a qualified attorney draft your Living Will.