What is a “Living Will”?
Recently, someone came into my office and wanted me to prepare them a “living will.” When we began discussing the terms of the living will, I realized that this person, like many others had a fundamental misunderstanding of what a living will really was. Most people think that a living will is just like a regular “last will and testament” except that it is valid while you are alive. This misconception no doubt is because of the similarity in names. A traditional will and a living will, however, are two very different things.
As most people know, a will is a legal document that basically outlines how you want your property distributed at you death. A will is valid only after you die and is properly filed at the probate court in the county in which you live, or own property. A “living will,” however, expresses your desires regarding medical treatment while you are alive, but unconscious or unable to communicate.
At their core, most living wills are based on the following statement: If I become terminally ill or injured or permanently unconscious, I do not want to have life sustaining treatment. Many people who have some understanding of a living will think that the preceding statement gives someone else a license to “pull the plug” whenever they are in the hospital. A living will, however, does not give anyone this sort of broad authority. Looking at the definitions of the key phrases of a living will, which are included in the document, reveals that this instrument simply instructs the hospital when it’s time to let you go.
In most living wills, you are “terminally ill or injured” is when your personal doctor and another doctor decide that you have a condition that cannot be cured and that you will likely die in the near future from this condition.
You are “permanently unconscious” when your personal doctor and another doctor agree that within a reasonable degree of medical certainty you can no longer think, feel anything, knowingly move, or be aware of being alive. They each must believe your condition will last indefinitely without hope for improvement and must have watched you long enough to make that decision. At least one of these doctors must be qualified to make such a diagnosis.
If you are deemed to be terminally ill or injured or permanently unconscious, you living will instructs the doctors to discontinue “life sustaining treatment.” Life sustaining treatment includes drugs, machines, or medical procedures that would keep you alive but would not provide a cure. If you choose to discontinue life sustaining treatment, you will still receive medicines and treatments that ease your pain and keep you comfortable.
You may also chose someone to make medical decisions for you in a living will if you are unable to do so yourself. This person is legally known as a “Health Care Proxy” and can make these decisions if your attending physician has determined that you are no longer able to give directions regarding your health care treatment and other health care decisions.