A living will or advance directive is a document that provides instructions about your wishes concerning medical treatments or life-sustaining measures if you have a terminal condition, become permanently unconscious or are in a persistent vegetative state and lack the capacity to make or communicate those decisions. A living will “speaks” for you only when you are unable to communicate your wishes concerning health-care decisions or life-sustaining measures.
The scope of a living will can be general or specific, or a combination. The living will can express your general desires with respect to the use of procedures that will sustain life or prolong the process of dying. It also may indicate how you feel about specific medical treatments. Your living will should not use ambiguous terms, such as ”extraordinary” or ”heroic,” unless the meaning of those terms is clearly defined in your living will.
Under the various state laws, living wills apply in limited situations when a person becomes a “qualified patient.” Generally, treatment can be refused or withdrawn according to the living will only when that person meets the following qualifying conditions:
- Medical prognosis of a terminal condition, permanently unconscious or persistent vegetative state
- Lacks capacity to make health-care decisions
- Not pregnant or not in certain stages of pregnancy
Treatments or Procedures that may be Refused
Generally, living will laws provide for the treatments or procedures that may be refused in the event a patient becomes a qualified patient. The procedures that may be refused are generally categorized as ”life-sustaining” or ”life-prolonging” or ”death-delaying” procedures. A living will may also indicate how your feel with respect to specific treatments.
If a living will refers to specific treatments, it should reflect whether the living will is to apply exclusively to those treatments or whether the will includes, but is not limited, to those specific treatments listed. Since it is impossible to include or foresee the applicable treatments that will be available, most living wills will include but not be limited to the specific treatments referred to in the declaration. It is also helpful for a living will to include a general expression of intent as guidelines, such as whether treatment should be withdrawn if painful, expensive, physically intrusive or difficult to administer.
State Living Will Forms
State laws often contain forms setting forth the recommended or required contents for living wills. Some state laws contain model living will forms that may be used and other state laws provide forms and require substantial compliance with the forms. If a person finds the provided form to be too narrow or to exclude important issues, they may want to include additional directives.
Formalities – Signature, Witnesses and Notarize
You should sign your living will. If you are physically unable to sign it, state law may allow it to be signed by another person at your direction. You must also follow any state law witnessing requirement. There may be restrictions on who can serve as a witness to a living will. State laws commonly require that at least two adults witness the signing of a living will and that one or both of them be disinterested, which may mean not related by blood or marriage, not entitled to a portion of your estate, not responsible for your health-care costs or not your health-care provider. Some states also require that a living will be notarized.
You May Cancel or Change Your Living Will
A living will remains effective unless it is cancelled by physically destroying it, writing a cancellation document or stating that you are cancelling it. Generally living wills do not expire; however, it may be necessary to have a new living will if the law changes or your wishes change.
Discuss Living Will with Your Physician
You should discuss a living will with your physician or other health-care provider prior to writing one because your health-care provider can educate you about various procedures and health-care decisions that may be required and should be covered by your living will. Another reason is to determine if the provider will be willing to carry out the provisions of the living will or has certain religious, moral or ethical objections to it.
Most state laws require the physician or provider to include your living will in your medical records. You should also keep a copy with your important papers and a statement in your wallet about the existence and location of your living will. Some states have living will registries with which the living will must be filed.
Immunity for Health-Care Providers
Living will laws generally give health-care providers some sort of ”immunity” if they follow the instructions given in a living will. The immunity granted may be from civil liability, criminal liability or findings of unprofessional conduct.
No Effect on Life and Health Insurance
Neither the execution of a living will nor the withdrawal of treatment according to it is permitted to have any effect whatsoever on any life insurance that you may carry, regardless of any terms of the policy to the contrary. For example, life insurance policies generally provide that the face amount of the policy is not payable in the event the insured commits suicide within two years of the issuance of the policy. If a person dies after the removal of life sustaining treatment pursuant to a living will, that person is not treated as having committed suicide.
Laws Distinguishing Withdrawal of Treatment from Suicide, Homicide and Euthanasia
State laws commonly include references to suicide, homicide and euthanasia and make it clear that a decision to refuse treatment is not considered a suicide and that cooperating with such a decision is not considered an assisted suicide or homicide.