What is a Living Will and why is it important?
By AnnMichelle Hart, Esq.
July 20, 2020
What Is A Living Will?
A living will (also known as Advanced Directive, Healthcare Directive, Directive to Physicians, or DNR Order) is a legal document that any person with capacity can execute to inform physicians, first responders, and family members of their wishes relating to emergency or end-of-life medical care in the event they are not able to make or communicate those wishes known themselves.
Is It Important For Me To Have A Living Will?
No one likes to think about getting older, getting sick, or even becoming incapacitated. However, accidents, disease, and unforeseen events happen every single day. All it takes is one incident for you or a loved one to be in a situation where you might not be able to, or capable of making your own care decisions. Most states have statutes in place giving these care decisions absent a signed and witnessed document to a statutorily-preferred individual (i.e. a spouse, adult child, or parent) who will determine the care you receive, regardless of whether you would have made that same choice for yourself.
Example: Jane Doe suffers a traumatic medical episode which renders her completely incapacitated both mentally and physically. Jane’s spouse is legally entitled under state law to make health care decisions for Jane and asks that her life support (keeping her alive) be terminated. Jane’s family doesn’t agree with her spouse’s decision to terminate life support and challenges him in court. After multiple appeals and millions of dollars in legal fees, the United States Supreme Court declined to hear the case, and the spouse was allowed to terminate her life support. This is was Terri Schiavo’s case from her illness in 1990 to her death in 2005.
Families all across the country are facing these kinds of choices and decisions every day because their loved one lacked proper advanced planning documents.
By having a living will in place for yourself, not only will it provide you with peace of mind knowing your loved ones will not bear the burden of trying to figure out what you would have wanted, it will give you family the assurance to know what you want and that they just need to follow your wishes, should the need ever arise.
How Do I Create a Living Will?
It is a legal document but a living will does not necessarily have to be drawn up by a lawyer. Any adult person, regardless of legal expertise or access to legal assistance, can create their own living will as long as the document conforms to all the state law requirements. If you wish have a living will, you should consult with a wills attorney to create a living will for you.
Your living will can contain as many or as few wishes regarding your care that you prefer, however, all living wills should at least contain your preferences for three separate areas:
A. Life-Prolonging Care – medical care in this category could cover procedures like blood transfusions, dialysis, ventilators, and /or emergency surgeries. Without a living will in place, your family could have very different feelings about these medical procedures than you and may be making different choices than you would have made to prolong your life in the event you become incapacitated. A living will helps to memorialize your wishes to avoid confusion.
B. Artificial Nutrition/Hydration – The human body can be sustained and be kept alive for a prolonged period of time, even well after brain death has occurred in the patient by giving them artificial food or water through intravenous means or a feeding tube. If you do not want to be kept alive if you become brain-dead, you’ll want to make sure your living will indicates that you do not want to be kept alive by means of artificial nutrition or hydration. Your document should contain a signed an acknowledgment that you understand that the withholding of artificial nutrition or hydration will eventually bring about your death.
C. Palliative Care – No one wants to die. You have every right to ask to be made as comfortable or pain-free when the time comes. Palliative care is the humane administration of drugs, medicine, or other substances to ensure that your final days are as comfortable as possible.
If you decide to create your own living will, be sure to look up your local laws to determine the number of witnesses needed to validate the document, and find out if a notary public is required.
Okay, I Have a Living Will, What Next?
Make sure a copy of your living will is available at all times. Stick a copy on your refrigerator so it can be easily located. Keep a copy with your other estate planning documents, such as health care powers of attorney, a trust, or last will and testament. Give a copy of your living will to your person named in those documents, and make sure they understand your other health care or financial decisions.
If you have a primary care physician, only visit certain hospitals, or live in a small town – you can give them a copy of your living will so they will have it on file there. You can also include a copy on file with your health insurer, or in a living will registry. If you use an attorney to draft the living will, consider keeping their business card on you at all times as a point of contact. The attorney’s office will likely retain the original document in the event that they ever need to produce a copy of the document.
If you have any additional questions about living wills, or to set up a consultation for your living will, feel free to contact me for an appointment.