Should You Consider a Living Will?


Within our daily life, our minds are filled with a constant to-do list – things that we have to do, want to do, and other things we would like to do for our loved ones.   But rarely do we have the time to consider things that could happen in the event we were to become permanently unable to fulfill our future plans.  In case of this situation coming into fruition, a living will is also known as a “healthcare directive” or “directive to physician,” was developed over a half-century ago.  Modernly, a living will allows a person to state their healthcare wishes in the event they become ill or unconscious and cannot make the decisions themselves.

Background and Characteristics of the Living Will

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.   Years ago, most people died at home surrounded by family; but with the advancement of science during the 20th century, the way in which people receive medical treatment vastly changed.  Because of the advancements in medical treatment, life can now be significantly extended.   Only just decades ago, patients with certain conditions like kidney dialysis or the need for an organ transplant would be given a fatal diagnosis.  Now, treatments can significantly extend a patient’s life while allowing them to remain active and alert.  On the other hand, some treatments leave patients in a far more limited condition, keeping their body alive, but the patient lacks ability to move or have brain activity. This condition is known as a “persistent vegetative state” — the patient is alive, like a plant is alive, but cannot speak, move, or display any sign of cognitive activity.

The ability to keep a person’s body alive without any consideration for brain function has caused numerous conflicts between healthcare providers and the family members of patients in conditions like irreversible comas.  A healthcare provider, thinking it to be his or her professional and moral obligation to keep a patient alive, while relatives of a patient may prefer that their love one by allowed to pass on if there is no realistic chance of recovery or for them to regain consciousness.   Many cases like this have received national attention, with patients suffering from irreversible brain damage, or being kept alive only by a feeding tube.

After conflicts like this became more widespread, California passed the Natural Death Act.  This was really the first living will law, and other states soon followed.

In 1990, the U.S. Supreme Court also recognized that, as long a person expressed their wishes in a valid, written document that observes applicable state law, that a patient has a right to refuse life-sustaining treatment, such as food and water. The majority of states now have living will statutes, and some states allow a patient to control, through an advanced health care directive, the care they will receive if rendered incompetent.

What is a Living Will?

A living will is a very important document that states your healthcare wishes in the event you become ill or unconscious and cannot make the decisions yourself.   This document can provide instructions for a number of issues; such as directing healthcare providers what types of life-extending treatment they wish to withhold if they are incapable of expressing their wishes.  A living will may request certain medical options and reject others, or request all available medical techniques and treatment options.  The whole purpose of living will is to allow a person to make important decisions for themselves when they still have the capacity to do so, so if the time comes that the person is near death or incompetent, he or she will not be undergo any unwanted medical treatment, healthcare expenses, or suffering.

A person has to be a competent adult in order to create a valid living will.  This document, or a third person if named in the living will, speaks on your behalf regarding your healthcare wishes if you face a terminal condition or have become incapacitated and cannot make those decisions yourself.   It is helpful to appoint a person to make those healthcare decisions on your behalf, because they can advocate your wishes with family members or doctors and help settle any possible disagreements over the meaning of language within a living will.   If a doctor refuses to respect any wishes in the living will, then the patient must be transferred to another hospital or doctor who will honor the wishes stated in the document.  A living will exempts doctors who follow them from any criminal or civil liability provided that care directives comply with rational medical standards.   Because the laws on living wills do not allow for any criminal or civil remedies for a healthcare provider’s refusal to end life-sustaining treatment, it is important to draft the living will with care.

Would You Benefit from a Living Will?

Much like deciding whether or not to be an organ donor, whether or not to make a living will is a personal choice.  The decision requires much thought about very difficulty possibilities such as permanent unconsciousness or inevitable death.   However, the effect on such conditions on your loved ones is something that must be realistically considered.  The financial and emotional costs of keeping someone alive when there is no realistic chance of a recovery can be brutal.  A chief reason for creating a living will is to avoid the depletion of an estate that could be passed to family and loved ones.  However, a living will is just one way a person can plan for their passing.   The living will can supplement a normal will, which becomes effective upon death.  A living will may act as insurance against any frustration of a regular will, as it can serve to prevent a creator of a will from being sustained on the brink of death with assets that can otherwise be passed through a will instead of paying high medical costs.  In order to fully protect yourself and ensure that the assets you have worked a lifetime to acquire will be used for your intended purposes after your death, it is wise to prepare a living will and an estate plan.  To ensure that all your wishes are accurately communicated, it is best to have a qualified attorney draft your living will.

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