June 17, 2020
What is it?
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. 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.” Laws recognizing living wills were largely motivated by the Karen Ann Quinlan case in the 1970s. Karen Ann Quinlan went into a coma and was placed on a respirator. Her parents felt that she would not want to be kept on a respirator, but she did not have a living will and her hospital refused to remove her from the respirator. Her family brought a lawsuit to force the hospital to discontinue treatment. About a year later, in 1976, the New Jersey Supreme Court finally ordered that she be removed from the respirator. Ironically, while she remained in a coma, she lived for 9 more years. Under present law, if Quinlan had a living will that said she didn’t want to be kept on a respirator if comatose, her wishes would have been followed without the need for her parents’ protracted and expensive legal battle.
When can it be used?
Availability determined by the law in your state
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. For example, some states only recognize a living will once a person is terminally ill or injured. Many states will not allow a person to decline food and water (“nutrition and hydration”) through a living will.
Allows you to approve or decline certain medical treatments now in case you are incompetent when the decision needs to be made
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), unless a court formally appoints a representative for you or you have designated an agent to act for you under a health-care proxy or similar document.
Caution: 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. In past cases, a court order has been necessary to have a living will enforced.
Removes the burden of making life-and-death treatment decisions from your family and friends
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.
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. Years may have passed and your living will may not reflect your current beliefs or consider new medical advances. Because of these limitations, 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 his or her understanding of your wishes.
Tip: On the other hand, if you execute a DPAHC, your representative may find it emotionally difficult to decide to terminate your health care, even if that is your wish. It may be preferable to make such a decision for yourself in a living will, though you may want to appoint a representative under a DPAHC as well.
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 it
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. For example, would you want to be placed on a ventilator? Undergo major surgery? Be placed on dialysis? Refuse artificial nutrition and hydration? Be kept alive at all costs? Would the decision change, depending on your condition?
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. Clearly writing down these decisions may be difficult and 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. You should determine the formal requirements in your state, as well as in any state where you spend a significant amount of time.
Tip: Since a living will is evidence of your intentions, it might be followed even if your state doesn’t have a law specifically authorizing living wills or even if it doesn’t meet that state’s specific requirements.
Make your living will consistent with all of your 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 and think about telling your family and friends that you have executed one
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 also tell them where it is kept so that they can locate it if it is needed. 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.
Tip: You can make a copy for your wallet or purse, or you can get a medical alert bracelet indicating that you have a living will. Some states will even reference it on your driver’s license.
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.
Gift and Estate Tax
Do you have to use the form provided by your state?
Generally, no. Although many states publish a living will form, many just serve as guides. However, some states do require you to use its form. Check the law in your state to be sure.
Can you change your mind regarding your decisions?
Yes. You can revoke or modify your living will, as long as you are mentally and physically able to make those decisions on your own behalf.