A living will, also known as an “advance directive” or a “healthcare directive,” is a legal document that provides directions as to what loved ones, hospitals, and healthcare providers should do in the event a person develops an incapacitating medical condition. It should state a person’s preferences for treatment and their end-of-life medical care. They are different from traditional wills, which are used to distribute a person’s property upon their death. A “living will” has no force or effect after a person’s death.
Living wills are intended to be written in advance of a person becoming incapacitated. This prevents a person from ending up in a situation in which they cannot give directions regarding their preferences for medical care. The document often names a person who should represent the author of the living will and make decisions on their behalf, should the person be incapable of acting on their own behalf.
Depending on where a person lives, this representative may also be referred to as a “healthcare agent,” a “patient advocate,” a “healthcare surrogate,” or other terms. These terms essentially refer to a person who represents a person in making decisions regarding medical treatments and procedures, if the person is unable to do so themselves.
What Types of Instructions Do Living Wills Contain?
The instructions found in living wills focus primarily on care that a person would receive at the end of their life. As mentioned above, they are also called “advance directives, ” or sometimes “medical directives,” since they are used to “direct” the person identified to represent the person who prepared the will regarding how to proceed with options for medical treatments.
This representative has a duty to obey the medical directive and the instructions that it contains, and hospitals and healthcare providers respect them as well. The instructions generally address preferences involving the following:
- Organ and Tissue Donations: Whether the person wants to donate their organs or tissue if they pass away;
- Tube Feeding: Whether the person wants to be kept alive by tube feeding, if their condition requires that measure;
- Emergency Surgeries: Whether they want emergency surgeries performed in certain circumstances:
- Medicines and Injections: What kind of medicines and injections the person wants administered;
- Coma: If a person is in a coma for a prolonged period of time, whether they want to be kept alive by artificial means;
- Issues Concerning Resuscitation: Mainly whether a person wishes to be resuscitated after they have become unconscious and apparently dead.
In a living will, a person might state that if they are in a terminal physical condition with no probability of recovery, they want to die a natural death, receiving only pain relief medication.
They do not want their life to be prolonged by artificial means.
Generally, a person gives such detailed instructions because they have clear preferences for what might be end-of-life care that is connected to cultural, religious, or individual preferences.
Therefore, if a person names a representative to make decisions for them, they want to identify someone familiar with the choices of the person they are representing and can be trusted to respect them.
What If I Have a Dispute about a Living Will?
The goal of a living will, in part, is to provide clear instructions regarding the care that a person wants if they are not in a condition to communicate that themselves. Then there should not be conflicts. On occasion, however, a legal dispute concerning a living will cannot be avoided.
For example, similar to traditional wills and legal contracts, a dispute may develop regarding the meaning of a particular word or phrase in the document. A living will might also give rise to a dispute due to advancements in medical technology. Treatments that were not available at the time the will was prepared may not be addressed in the will, leading to a lack of clarity as to how to proceed.
Or, family members who are unhappy with the provisions of a living will, e.g., a directive not to resuscitate, might contest the living will by claiming that the person who wrote it was not mentally competent when they did so, so the living will is not valid. Or, someone who is unhappy with the living will could argue that the author was subject to undue duress when they prepared the living will.
Other potential disputes might involve medical procedures that are performed against the wishes expressed in the living will and in spite of them, or decisions that violate state or federal laws. The person designated in the will to make decisions for the person whose living will it is might take actions that are not authorized by the author of the living will. This should happen only rarely as generally, hospitals and healthcare providers accept living wills and work to respect them.
Whatever the reason for the dispute, if a conflict involving living wills does arise, it may be necessary to file a lawsuit in a court of law. Then a judge would review the document, receive other evidence, and listen to arguments from both sides. The judge would then rule on how the healthcare provider should proceed with their care of the living will’s author.
Accordingly, it is in a person’s best interest to retain a lawyer to draft a living will. There are numerous forms available online, but a lawyer can ensure that its terms are extremely clear and legally enforceable. A lawyer would also be able to provide guidance regarding important provisions that should be added in order to avoid disputes, such as:
- If a dispute arises regarding the directions, how should they be resolved; or
- Who is next in line if the named healthcare proxy, or representative, is unavailable to act in that role, disregards the living will, or otherwise acts contrary to the wishes of the author of the living will.
Finally, because a living will designates a representative to make legal decisions on behalf of its author, an attorney will know how to clearly define the scope of the representative’s authority. This will decrease the likelihood of a dispute; a relative or other interested party would have less room in which to contest a representative’s actions if the scope of the representative’s authority is fully and clearly explained in the document.
Should I Hire a Lawyer for Help with a Living Will Document?
Living wills can be controversial because they deal with sensitive subject matter about which people can have widely divergent opinions and preferences. It can be helpful to have the input of an objective third party.
Thus, it is important that the document contain clear instructions. The best way to ensure that a living will is clear and enforceable is to consult a wills and estate lawyer. A will lawyer can help draft, edit, and review a living will, or can revise one that is already in existence.
It is advisable to review a living will periodically to make sure it is up-to-date with respect to medical procedures and the author’s current opinions and preferences.
The law on living wills or advanced medical directives can vary in different states, so it is important to have the help of a lawyer who is familiar with the law in the state where you live and can ensure that your living will complies with the requirements for living wills in your state. Something pulled off the internet may not succeed in that regard.
