Living wills, also known as, “advance directives,” are legal documents that provide future instructions in the event of a serious medical condition (e.g., incapacitation or disability), including the person’s preferences for treatments and procedures. They are different than traditional wills, which are used to leave property to loved ones.
Living wills are often written in advance, in order to prevent a person from being in a situation where they cannot take legal action due to a serious medical condition. The document often names a person that will represent the creator of the living will and can make decisions on their behalf, should such an event occur.
Depending on where you live, this representative may also be referred to as a health care agent, a patient advocate, a health care surrogate, and other various terms. These terms essentially mean someone who represents your decisions regarding medical treatments and procedures, if you are unable to do so.
The instructions found in living wills focus primarily on the medical treatment. As previously mentioned, they are also called advance directives, or sometimes “medical directives,” since they are used to “direct” the person that they named to represent them on how to proceed with medical treatments.
This representative has a duty to obey the medical directive and the instructions that it contains. The instructions will usually address decisions involving:
- Organ and tissue donations;
- Tube feeding;
- Emergency surgeries;
- Types of medicines and injections;
- Situations where a person is in a coma for prolonged periods of time; and
- Issues concerning life support and resuscitation matters.
Some living wills may express very specific instructions for carrying out a person’s decisions regarding their medical treatment. Many times, the reason that an individual may give such detailed instructions is often related to practices that are connected to cultural, religious, or individual preferences.
Therefore, it is very important to name a representative who is familiar with the desires and choices of the person that they are representing.
A living will should contain instructions that are both clear and straight-forward to prevent potential conflicts from arising in the future. Sometimes, however, it is not possible to avoid a legal dispute concerning a living will.
For example, similar to traditional wills and legal contracts, a dispute may occur regarding the meaning of a particular word or phrase in the document. A living will may also cause a dispute due to advancements in medical technology that might have changed since the time that the living will was originally created.
Other disputes that may occur include medical procedures performed against the wishes expressed in the living will; decisions that violate state or federal laws; and unauthorized actions taken by the person chosen to represent the creator of the living will.
Regardless of the reason for the dispute, if any kind of conflict involving living wills does occur, it may be necessary to file a claim with the court, so that a judge can review the document. A judge can help to determine what the appropriate remedy should be for the dispute, or how to specifically interpret the instructions provided in the living will.
Accordingly, it is in your best interest to retain a lawyer to draft your living will. Not only can a lawyer ensure that its terms are extremely clear and legally enforceable, but they also will be able to provide guidance regarding important provisions that should be added in order to avoid a dispute, such as:
- What should happen in the event of a legal dispute over the instructions; or
- Who the next person in line is if something should happen to the named health care proxy, or if they disobey the living will or act unlawfully.
Finally, since living wills also permit a representative to make legal decisions on behalf of its creator, an attorney will know how to clearly define and can include the proper explicit details for describing the scope of a representative’s authority. This will decrease the likelihood of a dispute occurring, because a relative will less likely be able to contest a representative’s actions if they are fully explained in the document.
Issues with living will documents are sometimes difficult to manage without the help of an objective party. Part of the challenge stems from the fact that the contents of living wills involve such a sensitive subject matter: a loved one’s medical directives. This can add a stressful emotional component to what may already be a complex legal issue.
The other reason why living wills may present complicated legal challenges is because the creator of the document might already be incapacitated by the time it occurs. They may also be in a similar situation where they are not able to express their actual intentions.
Thus, it is important that the document contains very clear instructions. The best way to ensure that a living will is clear and enforceable is to hire an estate lawyer. An estate lawyer can help draft, edit, and review a living will, or can revise one that is already in existence.
A lawyer can also provide legal advice concerning local laws that may affect the terms of your living will, and can represent you in court should you need to make an appearance.
Additionally, if you need to update, revoke, or make changes to a living will, you should contact a local estate lawyer immediately because the laws for living wills vary widely from state to state.