Should You Consider a Living Will?
As we go about our daily lives, we plan for the present and the future. We concern ourselves with what we must do and what we would like to do for ourselves and our loved ones. Rarely, however, do we consider what might happen if we were permanently unable to realize these plans. It is uncomfortable imagining ourselves in a position where we cannot make our own decisions about life. But incapacity happens. You could experience a terminal illness or permanent unconsciousness.
To address this situation, states developed advance directives that relate to health care. One type of advanced directive is the living will. It is also called a health care directive. This important document became available beginning a half-century ago. Today, all states have some form of a health care directive.
Healthcare directives are legal documents that can bring you peace of mind. These medical directives are powerful documents when drafted under the state's requirements. They allow others to make health care decisions on your behalf if you cannot.
Background of the Living Will
During the 20th century, medical science advanced dramatically. Due to advances in medical science, people can live with certain conditions that would have been fatal earlier. The treatments could significantly extend life in some cases, such as kidney dialysis and organ transplants. Such treatments have allowed patients to remain alert and active in their everyday activities.
Other treatments, however, leave patients in a much more limited condition. They can keep the body alive but cannot restore movement or brain activity. This condition has been called a “persistent vegetative state." Even with the most advanced medical care, the person is alive but cannot move, speak, or exhibit any signs of cognitive activity.
Medicine's ability to keep the body alive without regard to brain function has led to ethical dilemmas. It has also led to conflicts between health care providers and patients' family members. On the one hand, the health care providers believed it was their moral and professional obligation to keep patients alive. On the other hand, families typically want to allow their loved ones to die, rather than live that way.
Family members would instead allow nature to take its course. Many families prefer this option when there's no realistic chance they could regain consciousness. Families can be hesitant to follow medical professionals' wishes to keep the patient alive in a vegetative state.
The case of Karen Ann Quinlan gave national attention to this conflict. Medical professionals sustained Quinlan, who suffered irreversible brain damage, for eight years on a respirator. She persisted in this state until her parents secured permission from a New Jersey court to disconnect life support. After health care providers disconnected the respirator, Quinlan remained alive. She lived another 10 years sustained by a feeding tube.
In 1977, the Quinlans took their daughter's case to court. As a result of this situation, California passed the Natural Death Act. It's essentially the first living will law. Other states followed.
In 1990, the U.S. Supreme Court recognized a patient's right to refuse life-sustaining treatment, including food and water. This end-of-life wish must be expressed in a valid, written legal document that complies with applicable state law (Cruzan v. Director, MDH). Today, most states have a living will statute. Other states allow patients to control medical decisions through an advanced health care directive.
What Is a Living Will?
A living will is a person's statement to health care providers. It dictates the types of life-prolonging treatment they would not want to have in the case of a life-threatening condition. A living will comes into play when a person is incapable of communicating desired medical treatment.
The purpose of a living will is to make important health care decisions concerning end-of-life care while a person is competent. A living will can spare a person near death from unwanted suffering, medical treatment, and health care expenses.
For example, a living will can contain your care wishes regarding a do-not-resuscitate order (DNR). A DNR order will prevent you from being placed on life support if that is the only way to prolong your life.
When you add a DNR to your estate plan, you know that health care providers will respect your wishes. You can choose the end-of-life decision. This could make it easier for your family to cope as well. A DNR can be part of your living will or be a separate document, depending on your state's law.
You must be a competent adult to create a valid living will. The living will, or a third person, speaks for the will's creator if named in the living will. The living will speaks if the will's creator faces a terminal condition. The living will also applies when the will's creator is unconscious and unlikely to regain consciousness.
Authority of a Living Will
A living will carries great weight. A physician who refuses to respect the care wishes contained in the living will must transfer the patient. The health care provider should transfer the patient to another physician or hospital that will honor the document.
Living wills exempt physicians who follow them from civil or criminal liability. This is true if the care directives comply with reasonable medical standards. However, the laws on living wills do not allow civil or criminal remedies for refusing to end life-sustaining treatment.
It is critical to ensure your estate planning documents comply with state law in content and execution. With our easy-to-use forms, you can get started on a living will tailored to your state's laws.
Health Care Power of Attorney
In addition to writing a living will, appointing a person to make health care decisions, a health care agent, can be helpful. This is a separate document from a living will. Depending on your state's law, this person may be called a health care proxy or a medical power of attorney.
The appointment of a health care proxy or a medical power of attorney allows for advocacy on the patient's behalf. This advocacy may prevent disagreements over the meaning of language fixed in a living will.
Your attorney-in-fact or health care proxy will make health care decisions on your behalf. Your attorney-in-fact makes your health care decisions if you become too ill or are otherwise incapacitated.
Would You Benefit From a Living Will?
Whether to make a living will is a personal decision, much like becoming an organ donor.Writinge a living will requires contemplating imminent death or permanent unconsciousness. It might be difficult to ponder. Perhaps thinking about the impact of such a condition on our loved ones is easier. This could motivate you to act for their peace of mind.
The emotional and financial costs of being kept alive when there is no real chance of recovery are severe. Avoiding the depletion of an estate is a primary reason for the creation of living wills. A living will could result in you having a larger estate to pass on to loved ones.
The living will is just one form of planning for the end of life. It complements other estate planning documents you may have, which may include:
- A last will and testament
- A living trust
- A general durable power of attorney
A living will is insurance against the frustration of the last will and testament's purpose to pass on the decedent's assets. The living will seeks to prevent the will's creator from being sustained on the brink of death as assets diminish due to medical expenses.
Have More Questions About Living Wills? Ask an Attorney
Is a living will right for you? There are several ways to answer that question. The most prudent course is to consult an experienced estate planning attorney in your area today. An attorney can assess your situation. An estate planning lawyer can advise how various legal documents work together to meet your objectives concerning end-of-life issues.
Can I Solve This on My Own or Do I Need an Attorney?
- DIY is possible in some simple cases
- Cases with complex health care decisions or families are rarely cut and dry
- Attorneys offer tailored advice and answer your legal questions
- Many attorneys offer free consultations