What Is a Living Will?
A living will is a legal document that generally includes medical provisions regarding the use of life support, life-sustaining medical treatments, and feeding and breathing tubes, as they should be followed in case the person writing it becomes incapacitated and incapable to communicate such decisions directly; it becomes effective when that happens.
It can be supplemented by a person authorised through a healthcare power of attorney to communicate with medical personnel regarding accepted and unwanted procedures and treatments. It can also be changed or revoked at any time, while the person that has written it is still capable of doing so.
Main Difference between Living Will and Last Will
The main difference can be understood from the title and it has to do with the situation in which they become effective. The first one is used to communicate medical decisions regarding a person that is still alive, but not able to communicate, while the second is used to communicate asset distribution decisions after the person’s death.
Will vs. Living Will: Who Needs Them?
While both documents deal with situations that most of us don’t really want to think about, they also make sure the situation is not getting even more complicated if the unwanted happens. It is a way to ensure you and your loved ones peace of mind and an easier way to deal with the situation of you becoming seriously ill and incapable to communicate your wishes. Or worse. A last will simplifies the probate process and every step after your death, and a living will makes sure your medical decisions are known and followed even if you can’t communicate them yourself.
When is the best moment to create them? While you might not want to think about illness or death these days, the best moment for both of these documents is right now. Especially if you are terminally ill or undergoing important surgery. And even if you are healthy and well, because it is better to deal with this while you are not concerned about your health and you have enough time to discuss everything with your loved ones. This way you will make sure that when the time comes, they will now your wishes and will not be left with difficult choices and without any guidance.
Living Wills
A living will is a legal document that includes specific provisions regarding medical treatments that are or are not desired by the person writing it, in the event of a serious illness making him or her unable to communicate his or her medical decisions. It usually applies for medical treatments included in the life-prolonging procedures category, covering a list of serious medical conditions defined by law as it follows:
- A terminal condition — it is a medical condition generally defined as caused by injury, disease or illness. The particular medical aspect of a terminal condition is that there is no reasonable probability of recovery from it and that without treatment, a terminal condition can be expected to cause death;
- A persistent vegetative state — medical conditions that generally imply a permanent and irreversible condition of unconsciousness, meaning that there is no voluntary action or cognitive behaviour. Such a state is also defined by the inability to interact purposefully with the environment or communicate.
- An end-stage condition — it is a medical condition generally caused by injury, disease or illness defined by severe and permanent deterioration. Such a state is indicated by incapacity and complete physical dependency. An end-stage condition also means that with a reasonable degree of medical certainty it is considered that any treatment of the irreversible condition would be medically ineffective.
In any of these medical situations, if you are unable to make medical decisions or to efficiently communicate them, your living will becomes effective and expresses your wishes regarding life-prolonging procedures which are defined as:
Any medical procedure, treatment or intervention, including artificially provided sustenance and hydration, that sustains, restores or supplants a spontaneous vital function.
There are a few situations in which it is important to understand that a living will has no effect and these are:
- situations in which you are ill but still able to make medical decisions and communicate with people around you and medical personnel
- when at least one of the medical conditions that defines the situation in which a living will becomes effective does not exist
- the medical procedures that need to be decided are not life-prolonging procedures
Accordingly, medical procedures or medical treatment that is meant to alleviate pain and offer comfort are also not covered by a living will and you need to designate a healthcare agent for this situations by writing a healthcare power of attorney.
Why also a living will when you already have a healthcare power of attorney?
While a healthcare power of attorney authorizes your agent to make medical decisions regarding life-prolonging procedures, a living will allows you to actually inform your agent in writing about your specific desires and how you wish your agent to act in your name.
With no written directions, as those you can mention in a living will, all your agent has to go on is to base his or her decisions on conversations that you had regarding what you would like to do if you got terminally ill or in a permanent vegetative state. Or maybe rely on what he or she knows about your religious or philosophical beliefs.
Example:
Elisa and John have been married for 5 years. One day, Elisa told John that if she were ever in a terminal condition or a permanent coma (which is the same thing as a permanent vegetative state), she would not want machines and feeding tubes to keep her alive. A few years later, Elisa has an automobile accident and after comprehensive analysis and tests, her state is declared by her doctors as a permanent vegetative state.
After 7 years of keeping her alive with a feeding tube despite her verbally expressed wishes, John finally decides it is time to let her go. But Elisa’s parents disagree, having a hard time dealing with losing her. They file a lawsuit to stop her husband from disconnecting the feeding tubes, claiming that her daughter has never expressed the desire of not being maintained on life-support. Such lawsuits might take years until reaching a verdict, while Elisa will still be connected to the feeding tubes against her wishes that cannot be proven because they have not been included in written, in a living will.
In some states there is the alternative of designating a person to make sure the wishes expressed in your living will are followed. Still, the designated person cannot make health decisions for you, but just insist the decisions you have expressed in your living will need to be respected. In order to make sure a person chosen by you has the right to make medical decision in your name, you need to write a healthcare power of attorney.