A living will is a legal document where a person proactively declares their wishes pertaining to end of life care. In order to be honored by third parties, the document will need to be executed with similar formalities as a health care power of attorney, including witnesses and a notary’s acknowledgement. Essentially, most living wills say “if I am deemed terminally ill and my condition deteriorates to the point where nothing can be done to make me get better, I do not want medical means to be employed to keep my alive artificially.” That is to say, doctors may prescribe medications to keep the person as comfortable as possible but they may not prescribe medications or use mechanical devices to artificially prolong the dying process.
Although many people happen to have similar opinions regarding their own end of life care, that does not mean that a living will is a “one size fits all” document. A living will can and should address a variety of individual preferences concerning whether or not artificial means of nutrition and/or hydration should be provided, cardiopulmonary resuscitation should be administered, pacemakers should be implanted, dialysis should be performed, palliative medications should be employed, and/or various religious practices be adhered to. A living will can direct that life support systems be withheld completely, or can allow life support systems to be used for a limited period of time before being withdrawn. A living will does not become effective unless and until a person has a terminal illness, is in a persistent vegetative state or is facing imminent death.
In one’s estate plan, a living will should act in concert with the provisions of an appointment of health care representative, also known as a health care power of attorney. The function of that document is to name an individual who can make medical related decisions for a person when that individual is no longer capable of making their wishes known. When someone has declared their end of life treatment wishes in a living will, that document can help guide the health care representative in making decisions and communicating with medical personnel. The language in the living will can also lend credence to the representative’s decisions in the event there is conflict amongst family members during what is undoubtedly a very difficult time. The living will and appointment of health care representative should be carefully drafted to be sure that they act together and do not contain conflicting provisions. They should also be coordinated so that one may supersede the other if a disagreement arises.
Without a living will or appointment of health care representative, the person’s doctor will have no binding guidance concerning the person’s treatment, and may be obligated to employ techniques that may be considered “heroic” and which do not maintain any quality of life for the person. Challenging those medical decisions would involve filing a petition with the Probate Court to appoint a representative and could include numerous additional court procedures if family members disagree about the preferred course of treatment that the person would have wanted.
A living will should not be confused with an individual’s “last will and testament.” The latter is a legal document that documents a person’s wishes for the disposition of their individually owned assets after they die. In contrast, a living will governs end of life medical care and has nothing to do with an individual’s assets. A living will has no influence whatsoever after the individual has died whereas a last will and testament controls nothing until after the individual has died. The two different types of documents do share the word “will” in the name. That word is used appropriately for both documents because each is a legal memorialization of an individual’s wishes. As a proactive declaration of a person’s wishes, each must be executed when the person is alive and well and legally competent to memorialize their wishes in a legal instrument.
There is also some confusion between a living will and a “do not resuscitate” (DNR) order. A DNR is a doctor’s order registered in a patient’s medical file indicating that CPR and/or advanced cardiac life support should be withheld if a patient stops breathing or if their heart stops beating. A DNR order is entered only by a physician, not by a patient or the patient’s family. However, the DNR will be documented by medical personnel at the request of the patient and/or the patient’s duly named heath care representative. Although it varies from state to state, physicians may be also legally permitted to enter a DNR based on a patient’s wishes as documented in a living will.
It is better to ensure that your wishes are carried out by planning in advance for these types of difficult decisions, and to relieve your loved ones from the burden of trying to decide what is in your best interests without any guidance from you as to what you would have wanted if you could speak for yourself. Therefore, a comprehensive living will and an appointment of health care representative should be part of any estate plan.