Living Wills: Introduction

Contrary to its name, a living will is not actually a will.   To be more precise, it is actually a very important document that states your healthcare wishes in the event you become ill or unconscious and cannot make the decisions yourself.   A living will is also known as a “healthcare directive” or “directive to physician.”  Living wills first came about as a means of helping people who wished to have a natural death and not be sustained through artificial life support or other various medical techniques.

These types of documents grew in popularity and became accessible under local laws, and soon included other health care issues like resuscitation, tube feeding, and organ donation.  Living wills, while permitted in all states, must adhere to the particular regulations of the state in which they were created in order to be effective.  As long as a living will is valid, the document will bind healthcare providers to its directives.

What Can a Living Will Cover?

A living will can provide instructions for a number of issues; it is not just for directing healthcare providers to withhold treatment, which many believe to be its only use.  A living will may request certain medical options and reject others, or request all available medical techniques and treatment options.  It is wise to consulate with a doctor when drafting a living will.  Since the document involves important decisions regarding complicated medical issues, a doctor may help in clarifying what different types of treatments are best for you.  Some are hesitant to complete a living a will because they fear that a doctor could let them die while recovery is still possible.  A living will however does not take legal effect unless a patient is medically concluded that he or she is terminally ill or in a permanent vegetative, and therefore is unable to communicate their medical wishes.

Living Will vs. Durable Power of Attorney

The durable power of attorney gives legal authority to another person to make decisions regarding your healthcare on your behalf if you become incapacitated and cannot make those decisions yourself.  The term normally used for this person is an agent or an attorney-in-fact.   A durable power of attorney functions much like a living will, however it differs in that an actual living will can also direct that the agent carry out instructions stated in the living will or it can actually give the authority for the agent to use their own judgment.  A proxy may also be identified in a living will. A proxy helps in enforcing the terms of the living will.

A person does not have to be terminally ills or permanently unconsciousness for a durable power of attorney to become effective; it only matters whether or not the person is unable to make their own decisions regarding their healthcare.  The majority of estate planning attorneys recommend creating both a living will and a durable power of attorney so that all situations will be covered.   Without either documents, family members may argue over what treatment if any should be provided.  Also keep in mind that doctors will only ask family members about decisions regarding a person’s healthcare, friends and unmarried partners will not be allowed to participate in the decision unless a durable power of attorney or living will is created.

Choosing an Attorney-In-Fact

It is important when choosing who you would like to appoint as your proxy for health care decisions or the attorney-in-fact that he or she is a person you can trust who is also comfortable talking about healthcare issues.  Because whoever you choose will need to speak for the patient and advocate their wishes with family members, doctors, or even possibly the court, it is best to choose a person who is diplomatic and assertive.  Make sure the person knows the choices you have stated in the appropriate documents and that he or she also supports the instructions.  It is also helpful to enroll the cooperation of your relatives, friends, and doctors by providing them with copies of the relevant documents for their reference.

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