A living will, also called a medical or advance directive, is a legal document that provides future instructions in the event of a serious medical emergency, such as incapacitation or disability. This includes the individual’s preferences for their medical treatment and procedures.
A living will differs from its traditional counterpart, the will, which is typically used to leave real and personal property to a loved one once the individual passes away. Similar to a will, a living will is usually created in advance of a serious medical situation.
Unlike a traditional will, however, a living will is concerned with the individual’s present living conditions and not what happens to them or their property after they die.
For example, an individual who has a serious illness may draft a living will in order to provide instructions regarding legal and medical decisions should the individual’s illness progress and put them in a situation whether they become incapacitated, such as a coma.
A living will typically assigns an individual to take over as the testator’s representative who will have to make decisions on their behalf should it be required.
Depending on where an individual resides, 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 above terms essentially describe an individual who is legally permitted to make legal or medical decisions on the individual’s behalf should they find themselves in a situation where they are unable to do so for themselves.
What Belongs in a Living Will?
The primary purpose of a living will is to provide specific instructions regarding the individual’s preferences for medical treatments and procedures in the event that they become incapacitated. As discussed above, these instructions are referred to as either advance directives or medical directives because they are used to direct the individual who has been designated as the testator’s health care proxy on how to proceed with their medical treatments.
The appointed health care proxy will be legally obligated to obey the medical directives of the testator as well as any other instructions provided in the living will document.
In general, advance or medical directives usually address the testator’s preferences regarding the following types of decisions:
- Whether they want to donate their tissues or organs;
- If they would be willing to use tube feeding if their condition worsened;
- Whether they consent to having emergency surgery if such a scenario should arise;
- The various types of medicines or injections the individual would be willing to take;
- What to do if the testator is in a coma for a prolonged period of time; or
- The testator’s preferences when it comes to life support and resuscitation issues.
It is important that the living will contain detailed instructions regarding the medical preferences of the testator because it may be difficult for an individual other than the testator to decide. Additionally, the individual should provide detailed instructions in a living will if some of their decisions are associated with specific cultural, religious, or individual preferences.
No individual other than the testator will be able to express their desires. Therefore, it is crucial that a testator appoint an individual who is familiar with and willing to carry out their decisions and desires.
What are Living Will Forms?
As previously noted, living wills are documents that allow an individual to record their instructions regarding future health or medical care. These documents are relied upon when the individual becomes injured, incapacitated, or seriously ill in the future.
Living wills are often created using a standardized form. While this can help ensure that the will is valid under state laws, it may often be difficult to tailor a standardized form to the drafter’s individual needs.
What are Some Common Disputes over Living Will Forms?
Using a living will form may be helpful but an individual should be aware of certain common disputes that are associated with standardized forms and living wills, including:
- Unclear instructions regarding life support, resuscitation, and other medical issues;
- Unauthorized actions by the person chosen to represent the creator of the will;
- Medical procedures performed against the written terms in the living will; and
- Actions or decisions that violate state or federal laws.
It’s important to have a qualified attorney review any documents that are used in the creation of a living will. This can help prevent potential conflicts or disputes from arising in the future.
How are Legal Disputes over Living Wills Remedied?
A legal dispute over a living will may be handled in a court of law. The court may review the living will document to determine what the individual’s actual desires and preferences were based upon the document.
For example, a dispute regarding medical procedures can often be clarified by examining the terms written in the will. In certain cases, a damages award may be issued for losses.
Can a Living Will be Contested?
A living will must contain instructions that are clear and unambiguous in order to prevent potential disputes from arising in the future. However, there are some situations in which it may not be possible to avoid a conflict that involves a living will document.
For example, similar to traditional wills and legal contracts, a dispute could potentially emerge over the meaning of a particular term or phrase that was used in the document. A living will may also present legal challenges if there have been advancements in the medical field or with technology that have changed since the time the living will was created and would affect its current contents.
Although this problem may easily be remedied by amending the existing living will, it will not be so easy to make those modifications if the creator of the living will is already incapacitated. Other conflicts that may arise in connection with a living will include:
- Medical procedures that are performed against the desires expressed in a living will;
- Decisions regarding medical treatment or procedures that violate federal, state, or local law, for example, do not resuscitate regulations; or
- Unauthorized actions taken by the individual appointed to represent the creator of the living will.
Regardless of the reason that a living will dispute arises, the parties may find that the only way to resolve this type of conflict is to file a claim with the probate court. The court will review the document and can decide what the corresponding remedy should be that would settle the dispute in question.
It may be in an individual’s best interest to retain a lawyer when drafting their living will. Hiring an attorney to draft a living will can help ensure that its terms are clear and that the document is legally enforceable.
Do I Need a Lawyer for Help with Living Will Issues?
A living will can be a complex legal document. It may be helpful to consult with a will lawyer if you need assistance drafting a living will.
Your lawyer can help you review your documents and ensure that they are clearly written. In addition, if you have any legal disputes or conflicts, your lawyer can provide you with representation in a court of law.
