Is a Living Will right for you?

A Wall Street Journal article discussed the often ineffective nature of a living will. A living will is a document that details your wishes for medical treatment and life-sustaining or prolonging procedures. The problem with these simple documents is that spelling out medical treatment has become increasingly difficult due to advances in life-saving technology, and doctors’ increasing inability to accurately predict quality of life or consequences of certain medical procedures. Today’s post details the basics of a living will, and explores some of the advantages and disadvantages of not having a living will.

What is a Living Will?
The living will is the oldest form of an advanced healthcare directive, or document that directs your representative how to make decisions regarding your medical care once you are incapacitated. Originally introduced by Luis Kutner in a 1969 law journal article, Kutner explained how individuals could use these documents to devise a way for an individual to speak his desires for health care at a time when the individual is unable to express his or her wishes. Because this document is drafted while the individual is still alive, it was named the “living will.”

What’s included in the Living Will?
The living will usually includes specific directions about medical treatment that is to be followed by the individual’s health care providers. Often, there are specific directives that prohibit the use of various kinds of burdensome, life-prolonging treatment. Generally this includes whether or not the individual would like to remain on assisted feeding tubes and water, or other medical devices that prolong the individual’s life. The provisions of the living will can be as general or specific as you desire. The more specific your living will is, the greater the risk that your medical situation is not covered by your living will and your loved ones and healthcare providers are required to guess what your wishes would be. The more general you make your living will the higher the risk your loved ones and healthcare providers misinterpret your wishes. It’s important to work with an estate planning attorney to carefully draft your living will so as to minimize these risks.

When is my Living Will used?
The provisions of the living will do not become effective until you are unable to give informed consent due to incapacity. Once incapacitated, your healthcare providers are required to administer medical treatment based on the directions in your living will.

Am I required to have a Living Will?
No. No one is required to draft a living will, but many choose to do so in order to make sure their desires are taken into account once they are unable to make their own decisions regarding important medical decisions. Others choose not to have a written living will, favoring to designate a health-care agent or representative instead.

The individual you designate will have the power to make decisions on your behalf, based on your preferences (which can be conveyed to your health-care agent via conversation, a written document or list, or any other method of communication).  One major advantage is that your appointed representative can make real-time decisions in actual circumstances, instead of relying on advanced directives based on hypothetical situations. Many believe this option is more flexible since your health-care agent can make any medical decision based on your general preferences without the need to adhere to strict directives that may or may not be directly on point with the situation at hand.

The downside of simply designating a health-care agent in lieu of a living will is that it requires you to be clear with your health-care agent about what your intentions are regarding life-prolonging medical treatment. Also, choosing the right health-care agent is important. This person should be a close friend, family member, or anyone you feel knows your wishes regarding your medical care just as well as do. Last, if you do choose a health-care agent and do not create a written living will or document your wishes in writing, you risk of your health-care agent failing to make a decision that you would prefer.

The Decision
Choosing whether or not to have a living will depends largely on your situation and how comfortable you are with giving an individual the power to make life-prolonging decisions on your behalf if you are incapacitated. If you’re comfortable with giving this power to someone, typically your spouse, then not having a living will may be right for you. On the other hand, you can have a living will drafted as clearly and unambiguously as possible so as to take into account your desires for life-prolonging medical treatment.

If you’re interested in learning more about living wills or other options for documenting how you’d like medical decisions to be made on your behalf, please contact us or submit your question to our free Q & A service.


Gavin Johnson

Gavin enjoys craft beer and is learning the art of brewing.

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