Although you have likely heard the term “living will,” you may not know exactly what it is. A common misconception is that a living will is the same as the traditional last will and testament. It is not. Nor is a living will like a trust. Instead, a living will is a set of instructions regarding the type of medical treatment you want to receive if you are ever unable to express your desires yourself.
The general purpose of a living will
The basic purpose of a living will is to provide specific instructions for your family and your future healthcare providers regarding the course of medical treatment, if any, you want. A living will is only effective if you become unable to communicate that decision yourself. Put another way, if you are unconscious or incapacitated in a way that prevents you from communicating your desires for health care, then the living will communicates those wishes for you.
You can also draft a statement that says you do not want to remain on life support if you are “permanently unconscious” or “brain dead.” Living wills are also referred to as Advance Directives.
Three types of living wills
There are essentially three types of living wills. A living will can simply provide instructions to your healthcare provider regarding the medical treatment you consent to receive. A living will can also provide “proxy” authority to someone you trust to make the decisions for you, but without any specific instructions to follow. Or a living will can actually do both. The choice is yours.
The advantages of creating a living will
You should understand that individuals always have the right, even when their lives are ending, to make decisions about their health care. That right does not end simply because you no longer have the cognitive ability to make those decisions or explain them to your physician. If you become unable to communicate your choices at some point, a living will can communicate those choices for you. Another advantage of having a living will is the relief it provides to your relatives. The living will lessens the stress of trying to determine what you would have wanted, at a time that is already tremendously stressful.
You should be specific in the provisions you include
A common misunderstanding about living wills is that the language should be ambiguous so that it can be applied in many different situations. The opposite is actually true. In reality, it is better for your instructions to be as specific as possible in order to avoid confusion. Vague language can often result in conflicting interpretations. For instance, if you indicate that you want “no heroic measures” to be taken, you may be referring to no artificial nutrition and hydration (ANH). However, your doctor may interpret that phrase to simply mean no CPR.
Another common issue and reason for confusion is the interpretation of your medical condition and whether it invokes the terms of your living will. A living will only becomes effective when you are diagnosed with a terminal illness or when it has been determined that you are mentally or cognitively incapacitated. Physicians often disagree when it comes to determining whether a particular medical condition falls into these categories.
A living will does not mean you waive your right to medical care in general
Simply because you have a living will does not mean you no longer have a right to medical care. Instead, living wills govern treatment that requires consent. To the contrary, doctors and nurses will continue attending to your needs and your comfort for as long as necessary.
What is required to create a valid living will?
Most states require that, at a minimum, a living will must be written and signed by you, or by someone else at your instruction. It must also be witnessed by two other adults. In most cases, you must be of sound mind and at least 18 years of age when you draft and execute a living will.
A Durable Power of Attorney for Health Care
A Durable Power of Attorney for Healthcare is one type of Advance Directive used specifically for the purpose of appointing someone you choose to have the authority to consent to medical treatment on your behalf, as well as, to withhold certain medical treatment, if that is your choice. A Durable Power of Attorney for Healthcare gives you the opportunity to discuss your expectations regarding your future medical treatment with your agent now, while you are still able to do so.
If you have questions regarding a living will, or any other estate planning matters, contact Gaughan & Connealy for a consultation either online or by calling us at (913) 262-2000.
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