A living will is your written decision regarding medical care that remains effective if you lose the mental capacity to make or communicate a responsible decision for yourself. Depending on the state you reside in, this may also be referred to as a medical directive, healthcare proxy or an advanced health care directive. It allows you to approve or decline certain types of medical care even if you will die because of the choice. However, its effectiveness is generally limited by state law to specific situations, and, in most states, it can be used solely to decline medical treatment that "serves only to postpone the moment of death."
When can it be used?
Although there is generally a constitutional right to have a living will, state law may limit the types of decisions that can be made in a living will or recognize living wills only in certain circumstances.
What are the benefits of a living will?
Allows you to approve or decline certain medical treatments now
By executing a living will, you state your wishes regarding whether you want to receive certain medical treatments if you should become incompetent. Without a living will, your physician generally makes your health-care decisions (usually with the participation of one or more family members) or you have designated an agent to act for you under a health-care proxy or similar document. However, executing a living will doesn't guarantee that your wishes will be followed. Some physicians or hospitals may be hesitant to follow your living will.
Removes the burden of making life-and-death treatment decisions
Deciding whether or not to decline medical treatments that could sustain your life would likely be stressful for your family and friends and may result in a disagreement between those closest to you. Many people would prefer to make decisions regarding life-prolonging treatment in a living will, rather than leaving the decision to others.
What are its tradeoffs?
May only apply in limited situations or allow refusal of certain treatments
Some states recognize living wills only in limited situations, such as when a person is terminally ill or injured or in a persistent vegetative state. Other states recognize living wills only when a person faces imminent death. Many states refuse to allow a person to decline hydration and nutrition in a living will. Generally, a living will addresses life-and-death questions. It is ineffective in giving direction regarding more common health-care decisions, such as day-to-day care, placement or continuing treatment. A durable power of attorney for health care (DPAHC) is better suited to making these decisions.
Generally won't be honored in emergencies
A living will generally won't prevent unwanted emergency treatment or resuscitation. A do not resuscitate order (DNR) is usually necessary to prevent such emergency care.
Unlikely to take into account the specific circumstances in which it would be used
In a living will, you make decisions now about whether you would want specific medical care while suffering from an unforeseen illness or injury. You probably won't be able to foresee your condition, chances for recovery or treatment options. A living will may be a poor mechanism for actually managing your health care if you become incompetent. In contrast, a DPAHC appoints a representative who makes decisions based on your actual condition, the proposed treatment, the likely consequences, and their understanding of your wishes.
May not be enforced in every state
A living will that is valid in one state, may not be enforceable in another because of the differences between the states' living will laws. Therefore, if you spend a significant amount of time in another state, consider adopting a living will that also satisfies that state's requirements. However, even if a living will does not satisfy a state's living will statute, a court may enforce it based on the constitutional right to decline health care.
How to do you set up a living will?
Decide what medical treatments you would want
Decide which medical treatments you would want if you are terminally ill or injured or in a persistent vegetative state.
Clearly state decisions regarding treatment
Your living will must clearly state your wishes since you won't be able to clarify your intentions at the time it is needed. You may benefit from the assistance of an attorney, an organization with experience in this field or other reference materials.
Make sure the living will is in the proper form
Most states require that a living will be signed, dated and witnessed in much the same way as a traditional will. Some states impose more specific rules, such as requiring that the living will be in a specific form, filed with the State Board of Health, witnessed by the hospital chief of staff, or renewed every five years.
Make your living will consistent with other written directions regarding medical care
Because of the inherent limitations of a living will, you may want to execute other types of directions regarding medical care, such as a durable power of attorney for health care. All documents in which you make health-care decisions for the future should be consistent and clearly state which of the documents should be followed in various situations.
Keep your living will accessible
Your living will can only be effective if given to the medical professional treating you. Therefore, it should be accessible, especially when you are away from home. You can give a copy to your physician, who is likely to be contacted if you need medical attention. You should tell your family and friends that you have adopted a living will and where it is kept. It is advisable to give an original or copy of your living will to the person that has been named in it to carry out your wishes. You should also notify the agent you have named in your durable power of attorney for health care, if any, about the terms of your living will.
Update your living will regularly
You should review your living will regularly, especially if your medical condition changes, to ensure that it still reflects your condition and beliefs. Physicians, health-care facilities and courts are more likely to enforce a recent living will than one executed years ago. You should also be aware of changes in your state's living will laws and you should update your living will to reflect those changes.
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This is not intended to provide legal, tax or accounting advice. Any statement contained in this communication concerning U.S. tax matters is not intended or written to be used, and cannot be used, for the purpose of avoiding penalties imposed on the relevant taxpayer. Clients should obtain their own independent tax advice based on their particular circumstances.
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