Living Wills

The term "living will" is commonly used to refer to a document that expresses a person's desires and preferences about medical treatment in case he or she becomes unable to communicate these instructions during terminal illness or permanent unconsciousness. While the term remains in use, it has fallen out of favor in recent years, since living wills are not really wills at all. They are not concerned with matters beyond specifying certain wishes regarding medical treatment. A living will may also be known as a healthcare directive, directive to physicians, instruction directive or a declaration concerning life-sustaining measures.

A living will is considered to be one type of "advance directive" pertaining to health care decision-making. An advance directive is defined as a written instruction, such as a living will or durable power of attorney for health care, recognized under state law, which relates to the provision of such care when the individual is incapacitated. Patient Self-Determination Act (PSDA), 42 U.S.C.A. § 1395cc(f)(3).

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, heroic resuscitation, and organ donation. While living wills are allowed in all states, they sometimes must follow certain formalities in order to be effective. In fact, most states have living will statutes and a failure to follow statutory requirements concerning the form of the living will can render the document invalid. Moreover, state living will statutes must be read in conjunction with state laws concerning durable powers of attorney for health care and advance directives. It is important to note that all states do not define significant terms - such as "advance directive," "living will," and "terminal condition" - exactly the same, and different terminology may be used depending on where one lives. Since a living will may involve complex legal issues, consultation with a lawyer licensed to practice in one's state is strongly encouraged. If valid, a living will binds health care providers to its instructions.

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 legally take effect unless the patient is diagnosed as terminally ill and death is imminent, or when the patient is medically determined to be in a permanent vegetative state, and therefore unable to communicate medical preferences.

Usually, a living will is an instruction only; it does not appoint a decision-maker in the event of incapacity. A durable power of attorney for health care (DPOAHC) may be used to appoint such a decision-maker. A durable power of attorney for health care is defined by the Uniform Health Care Decisions Act as "the designation of an agent to make health-care decisions for the individual granting the power." Uniform Health Care Decisions Act § 1 (12). The DPOAHC is also sometimes called a "health care proxy."

A durable power of attorney for health care 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 him or herself. This power becomes effective only upon a determination that the principal lacks capacity. A durable power of attorney for health care 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 his or her own judgment. The living will itself also can specify a proxy to help enforce its terms. A durable power of attorney for health care 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. By appointing someone to be a substitute decision-maker through a DPOAHC, a patient does not have to address all treatment options and medical conditions, and a patient is protected if new procedures become available. Thus, the DPOAHC facilitates health care decision-making of an incapacitated person in a much broader range of circumstances than a living will. Most estate planning attorneys recommend both documents to cover all situations.

Without a living will and durable power of attorney for health care, family members may end up arguing over what treatments should or should not be provided. Also, doctors will only consult family members on health care decisions. If a person prefers that a friend, unmarried partner, or "significant other" participate in his or her health care decisions, a living will and durable power of attorney for health care, may be used by the principal to appoint such person as an agent, so that he or she has a say. Therefore, a durable power of attorney for health care is particularly important for persons in non-traditional relationships or when a person fundamentally disagrees with a spouse or other family members on the appropriateness of particular kinds of medical treatment.

The person chosen as proxy or as the attorney-in-fact 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 proxy should be well aware of the choices made in the relevant documents and should support those instructions. It is extremely important that the principal and the agent discuss the principal's general moral, religious, and practical views about medical treatment, and the use of life-sustaining measures in various specific circumstances. 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.

Due to the complex legal issues involved with advance directives, you should seek the services of a competent attorney or professional if you require legal or other expert advice.

Sample Living Will Form

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Sample Living Will Form

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