Living Will Basics

Clarifying Mixed Terminology

First, take note that "living will" is a bit of a misnomer. Of course, a will is a legal document that sets out a person's instructions on how to distribute their property when they die. By contrast, a living will is an advance directive that describes how someone is to be cared for if they are unable to communicate while alive (hence, "living").

Adding to the confusion, "living wills" are known by several other names that vary from state to state. Depending on your location, they may be called "health care declarations," "medical directives," or "directives to physicians." Keep this in mind as you investigate the laws in your jurisdiction.

What Types of Procedures Are Covered?

Living wills address situations in which a terminal condition leaves you unable to make your own health care decisions. They are used to permit, constrain, or prohibit a variety of medical treatments. The instructions you leave can be general or specific.

Some of the most common topics addressed in living wills include:

• Life Support. Life-sustaining treatment is used when a patient's body cannot keep itself alive naturally. Treatment may include anything from respirators filling your lungs with air to dialysis when your kidneys stop filtering your blood. Depending on the situation, life support may be short or long-term.
• Palliative Care. This kind of treatment is meant to manage pain and stress caused by serious illnesses. Even if you opt out of certain kinds of life support, palliative care can help maintain your quality of life in your final days.
• Nutrition and Hydration. If you cannot eat or drink because you are incapacitated (e.g., an accident or illness leaves you in a prolonged coma), there are a number of medical interventions that can supply your body with nutrition and hydration. Common examples include tube feeding or intravenous (IV) drips. In some cases, patients can be kept alive for years using these interventions.
• Organ Donation and Body Disposition. Your living will can specify what should be done with your organs and body when you die. For example, you can specify whether you would like to be buried or cremated. Many people also choose to donate their organs to other patients and their bodies for research.
• Religious or Philosophical Preferences. Your living will can also provide instructions that implement your religious or philosophical preferences.

As you consider your end-of-life treatment preferences, remember that each state has its own laws governing living wills. Therefore, be sure to consult your state's laws for special requirements and restrictions.

The Benefits of Creating a Living Will

Each person has a right to bodily integrity and personal autonomy. This is reflected in the constitutional right to refuse medical treatment. A living will implements this right by setting out your health care wishes ahead of time.

A well-drafted living will is a legally binding document and provides assurance that your wishes will be honored. Without this document in place, others may make decisions for you that you would not have made yourself.

There are other benefits as well. Guidelines in your living will provide clarity to health care providers when making life-sustaining decisions. Living wills also can reduce conflict among family members when confronting the possibility of your death or permanent incapacitation. In general, making your wishes clear can alleviate the emotional burden on your loved ones as they try to do the right thing on your behalf.

Should I Also Have An HCPA?

A health care power of attorney (HCPA) is a legal document that gives another individual authority to make health care decisions on your behalf. As long as you choose that individual carefully, an HCPA can be a useful supplement to your living will.

Where living wills set out specific permissions and restrictions related to your end-of-life care, HCPAs are more open-ended. The authority they grant is normally not limited to end-of-life scenarios. Instead, they simply allow someone to make general medical decisions when you cannot due to incapacity.

That said, you can certainly limit the scope of authority created by an HCPA. Among other things, you can make clear that any decisions made under the HCPA should not conflict with instructions in your living will (in case this wasn't clear). Further, an HCPA can also give someone authority to enforce the care preferences described in your living will.

The legal terminology relating to HCPAs varies from state to state. An HCPA is sometimes known as a "health care proxy," "appointment of a health care agent," "designation of a health care surrogate," or "durable power of attorney for health care." The person empowered by an HCPA to act on your behalf is variously known as a "proxy," "agent," "surrogate," or "attorney-in-fact."

Need Help Creating a Living Will?

The thought of losing control of our bodies or the ability to make our own decisions can be unsettling, but incapacitation need not leave you completely powerless over your own health care. By planning in advance, living wills ensure that treatment decisions in a worst-case scenario are in fact your own decisions.

Living wills and other advance care directives are often included as part of your estate plan. Findlaw's do-it-yourself estate planning tools can help you draft your living will according to the laws in your state. If you have further questions, a local estate planning attorney can help.