The term “living will” is commonly used to refer to a document that expresses a person’s desires and preferences about medical treatment in case he or she becomes unable to communicate these instructions during terminal illness or permanent unconsciousness. While the term remains in use, it has fallen out of favor in recent years, since living wills are not really wills at all. They are not concerned with matters beyond specifying certain wishes regarding medical treatment. A living will may also be known as a healthcare directive, directive to physicians, instruction directive or a declaration concerning life-sustaining measures.
A living will is considered to be one type of “advance directive” pertaining to health care decision-making. An advance directive is defined as a written instruction recognized under state law – such as a living will or durable power of attorney for health care – which relates to the provision of such care when the individual is incapacitated.
The first living wills helped people who wanted a natural death unattended by artificial life support and other advanced medical techniques. As these documents became more popular and widely available under local laws, they came to include other health care concerns, such as tube feeding, heroic resuscitation and organ donation. While living wills are allowed in all states, they sometimes must follow certain formalities to be effective. In fact, most states have living will statutes, and a failure to follow statutory requirements concerning the form of the living will can render the document invalid. Moreover, state living will statutes must be read in conjunction with state laws concerning durable powers of attorney for health care and advance directives. It is important to note that all states do not define significant terms – such as “advance directive,” “living will” and “terminal condition” – exactly the same and different terminology may be used depending on where one lives. Since a living will may involve complex legal issues, consultation with a lawyer licensed to practice in one’s state is strongly encouraged.
Many people believe that living wills only direct health care providers to withhold treatment. While many choose to issue that type of instruction, a living will also allows a person to ask for all available treatment options and medical techniques, or to choose some medical options and reject others. Some people do not complete living wills because they worry doctors could let them die when there is still a chance for recovery. However, a living will cannot legally take effect unless the patient is diagnosed as terminally ill and death is imminent, or when the patient is medically determined to be in a permanent vegetative state and therefore unable to communicate medical preferences.
Usually, a living will is an instruction only; it does not appoint a decision-maker in the event of incapacity. A durable power of attorney for health care may be used to appoint such a decision-maker. Sometimes called a “health care proxy,” a durable power of attorney for health care can perform some of the functions of a living will. This document gives an attorney-in-fact legal power to make health care decisions for someone who cannot make those decisions him or herself. This power becomes effective only upon a determination that the principal lacks capacity.
A durable power of attorney for health care differs from a living will in that it may direct the attorney-in-fact to carry out the living will’s instructions or it may allow the attorney-in-fact to use his or her own judgment. A durable power of attorney for health care may be used whenever the individual granting the power cannot make his or her own health care decisions; it does not depend on terminal illness or permanent unconsciousness to become effective. By appointing someone to be a substitute decision-maker in this way, a patient does not have to address all treatment options and medical conditions, and a patient is protected if new procedures become available. Most estate planning attorneys recommend both documents to cover all situations.
Due to the complex legal issues involved with advance directives, you should seek the services of a competent attorney or professional if you require legal or other expert advice.
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