A living will is a legal document that provides future instructions in the event of a serious emergency, such as disability or incapacitation. Living wills may also be referred to as medical or advance directives.
A living will is different from its traditional counterpart, the will, which is used to leave real and personal property to an individual’s loved ones after they pass away. A traditional will is part of an individual’s wills and trusts estate plan.
Similar to a traditional will, a living will is often created in advance of a serious medical situation. Unlike a traditional will, however, a living will is concerned with an individual’s present living conditions and not what happens to them or their belongings after they pass away.
For example, an individual who has a serious illness may draft a living will that provides instructions regarding legal and medical decisions if their illness progresses and places them in a situation where they become incapacitated, for example, a coma. Living wills typically assign an individual to take over as the testator’s representative who will make the decisions on their behalf if necessary.
Depending on where an individual lives, this type of representative may also be referred to as a:
- Patient advocate;
- Health care proxy;
- Health care agent;
- Health care surrogate; or
- Various other titles.
Regardless of what the designated representative is called, all of the terms listed above describe an individual who is legally permitted to make legal or medical decisions on an individual’s behalf if they find themselves in a situation where they are unable to do so themselves.
I Have Decided to Make a Living Will. What Do I Need to Do?
The first thing an individual must do is answer some difficult questions regarding how they would like their life artificially prolonged by a physician. The medical field is always changing and developing new innovations, so an individual should discuss their medical treatment wishes with their doctors first and determine what types of treatments are available.
The more specific an individual’s living will is, the better their doctors and loved ones will be able to follow it. Because of this, it is important for an individual to be familiar with the sorts of decisions their family or loved ones may be called on to make one day.
Should I Put My Wishes in Writing?
Yes, an individual should absolutely put their wishes in writing. Although there are many states that permit oral living wills, there is typically little evidence of an oral statement.
This may be an issue in the event of living will disputes, especially if individuals have different recollections regarding what the incapacitated individual would have wanted or if they are too emotionally emotionally grieved to make the proper decisions. In these situations, it is essential for an individual to have a legal document for their medical caregiver to fall back on.
If a serious illness or injury arises and an individual becomes unable to make medical treatment decisions, the only way they can ensure they will retain their legal ability to control their own medical treatment is by having a living will in writing. If an individual puts their wishes in writing, it removes the uncertainty and biased opinions of other individuals from the process, allowing only the requests that the individual wants or does not want carried out.
How Do I Know What to Put in a Will?
Choosing what to put in a will is entirely up to the individual, as a living will can be as broad or as specific as the individual desires. There are, however, certain areas the individual should cover, including whether or not they wish to appoint someone with durable power of attorney in addition to their wishes regarding common life-sustaining treatment issues.
Appointing a durable power of attorney allows another individual to make medical decisions for them in case something happens that is not covered by their living will. Typical issues that would be included in a living will include:
- CPR or Fibrillation: Whether the individual wants doctors to attempt to restart their heart if it stops beating, using electric shock or compressions;
- Breathing Tubes: Whether the individual wants doctors to take measures to help them breathe, such as inserting tubes in their throat or putting them on a ventilator;
- Feeding or Hydration: Whether the individual wants to be indefinitely fed and hydrated if they are in a vegetative state, such as in the well known Schiavo case;
- Dialysis: Whether the individual wants to be put on a dialysis machine if their kidneys cease to function; and
- Pain Killers: The type of pain management options the individual wants to be administered.
An attorney who specializes in wills and trusts will be able to help an individual with the formal process of drafting the will in addition to ensuring that all of the legal requirements of the state are met. Knowing what to put in a living will before drafting it can help an individual avoid costly errors and do-overs.
It is important to note, however, that most state laws do now allow an individual to refuse life-prolonging medical procedures if they are pregnant at the time of their medical need. In the cases of pregnant women, a living will is typically canceled unless there is no chance for the fetus to survive.
What Belongs in a Living Will?
The main purpose of a living will is to provide specific instructions regarding the testator’s preferences for the medical treatments and procedures in the event they become incapacitated. The appointed health care proxy will be legally obligated to obey the testator’s medical directives as well as any other instructions provided in the living will document.
Generally, advance or medical directives address a testator’s preferences regarding the following issues:
- Whether they want to donate their organs or tissues;
- If they would be willing to undergo tube feeding if their condition worsens;
- Whether they consent to having emergency surgery if such a scenario should arise;
- The various types of medicines or injections they would be willing to take;
- What to do if the testator is in a coma for a prolonged period of time; and
- The testator’s preferences regarding life support and resuscitation issues.
An additional reason why an individual should provide detailed instructions in a living will if there are decisions associated with specific cultural, religious, or individual preferences. No one other than the testator is able to express these desires.
Do I Have to Put Things Regarding my Funeral and Property in my Living Will?
No, an individual does not have to put instructions regarding their funeral or property in their living will. As noted above, last will and testaments and advance directives are two very different things.
A living will is only valid while an individual is alive. It only addresses how the individual wants their affairs to be handled both medically and otherwise, if they are incapacitated or unable to make decisions, for example, severe Alzheimer’s.
A last will and testament is a document that controls issues such as:
- Who receives the individual’s property, who will be the guardian of their children;
- Who will manage their estate upon their death, and
- Other issues.
A will and a living will are two totally different documents.
Should I Hire a Lawyer?
If you have any issues, questions, or concerns regarding drafting your living will, is it important to consult with a wills lawyer. It is important to ensure you have a written and legally binding document to ensure that your wishes are followed in difficult times.
Your attorney can ensure that your living will meets all of the state requirements and is legally valid. This can allow you to rest easy knowing that your medical care is handled in the way you decided it should be.
