Living Wills: Introduction

Living wills are not really wills at all. Instead, a living will (which also may be known as a healthcare directive or directive to physicians) is a document that expresses a person's desires and preferences about medical treatment in case they become unable to communicate these instructions during terminal illness or permanent unconsciousness.

The first living wills helped people who wanted a natural death unattended by artificial life support and other advanced medical techniques. As these documents became more popular and widely available under local laws, they came to include other health care concerns such as tube feeding, resuscitation, and organ donation.

While living wills are allowed in all states, they sometimes must follow certain formalities to be effective. If valid, a living will binds health care providers to its instructions. Our easy-to-use, state-specific forms can help you get started.

What Can a Living Will Cover?

Many people believe that living wills only direct health care providers to withhold treatment. While many choose to issue that type of instruction, a living will also allows a person to ask for all available treatment options and medical techniques, or to choose some medical options and reject others.

Because a living will involves complicated medical issues, consultation with a doctor may help clarify different treatment types and assist the patient in making living will decisions. Some people do not complete living wills because they worry doctors could let them die when there is still a chance for recovery. However, a living will cannot take effect legally unless the patient is medically determined to be in a permanent vegetative state or terminally ill, and therefore unable to communicate medical preferences.

Living Will vs. Durable Power of Attorney

A durable power of attorney can perform some of the functions of a living will. This document gives an attorney-in-fact legal power to make health care decisions for someone who cannot make those decisions themself. A durable power of attorney differs from a living will in that it may direct the attorney-in-fact to carry out the living will's instructions, or it may allow the attorney-in-fact to use their own judgment.

The living will itself also can specify a proxy to help enforce its terms. A durable power of attorney may be used whenever the individual granting the power cannot make their 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.

Without a living will or durable power of attorney, family members may end up arguing over what treatments should or should not be provided. Doctors will only consult family members on health care decisions; if a person prefers that a friend or unmarried partner participate in their health care decisions, a living will and durable power of attorney enable that person to have a say.

Choosing an Attorney-In-Fact

The person chosen as the attorney-in-fact or proxy for health care decisions should be a trusted individual who is comfortable discussing health care issues. Because this person may need to argue the patient's case with doctors or family members, or even go to court, an assertive and diplomatic individual may be preferred.

The representative should be well aware of the choices made in the relevant documents, and should support those instructions. It is also useful to enlist the cooperation of friends, relatives, and health care providers by giving them executed copies of the document for their reference, should the need arise.

Drafting a Living Will? Eliminate the Guesswork With Legal Help

Decisions relating to health care and incapacity should be carefully considered. Once problems arise there will likely not be an opportunity to fix mistakes or provide clarification.

Contact a local estate planning attorney today, who can help prepare the documents that will ensure that your wishes are understood and enforced if you become unable to communicate them for yourself. If you use a form, like one of our state-specific living wills, an estate planning attorney can review it for you.

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