A living will is a written document that describes the kind of life sustaining treatment you want or do not want if you are later unable to tell your doctor what kind of treatment you wish to receive.

The law may not recognize all types of instructions which might be contained in a person’s living will. Rather, those instructions must relate to situations where medical treatment would serve only to prolong the process of dying or to maintain a patient in a state of permanent unconsciousness.

So, for example, many states do not specifically recognize living wills which direct a health care provider to refuse medically beneficial, non-futile care. You should also understand that a living will is not a will. A will tells your survivors what to do with your property after your death.

Who can make a living will?

Any competent person who (1) is at least 18 years old, (2) is a high school graduate, or (3) has married, can make a living will.

When does a living will take effect?

A living will only takes effect when: (1) your doctor has a copy of it; and (2) your doctor has concluded that you are incompetent and therefore no longer able to make decisions about the medical care you wish to receive; and (3) your doctor and a second doctor have determined that you are in a terminal condition or in a state of permanent unconsciousness.

What does it mean to be incompetent?

Incompetence means the lack of sufficient capacity for a person to make or communicate decisions concerning himself. The law allows your doctor to decide if you are incompetent for purposes of implementing a living will and does not require a judge to make that decision.

What should my living will contain?

There is no single correct way to write a living will; your living will may have additional or different directions than the directions which appear in e sample living wills. Your living will may not be valid, however, unless you have taken the following steps: (1) You must sign your living will. If you are unable to do so, you must have someone else sign for you; and (2) Two people who are at least 18 years old must sign your living will as witnesses. Neither of those witnesses may be the person who signed your living will if you were unable to sign it yourself. You should also date your living will, even though the law may not require it.

To whom should I give my living will?

You should give a copy of your living will to your doctor, hospital, nursing home or other health care provider. When you enter a hospital or nursing facility, the law requires your doctor or other health care provider to ask you if you have an advance directive. If you give a copy of your living will to your doctor or other health care provider, that document must be made a part of your medical record.

What if my doctor or heafth care provder refuses to follow the directions in my Iiving will?

Your doctor and any other health care provider must tell you if they cannot in good conscience follow your wishes or if the policies of the institution prevent them from honoring your wishes. This is one reason why you should give a copy of your living will to your doctor or to those in charge of your medical care and treatment. If you are incompetent when you are admitted for medical care and have named someone in your living will to make decisions for you, that person must be told if the wishes contained in your living will cannot be honored. If you have not named anyone in your living will, your family, guardian or other representative must be informed that your living will cannot be honored. The doctor or other health care provider who cannot honor your wishes must then help transfer you to another health care provider willing to carry out your directions-if they are the kind of directions which the law recognizes as valid.

What if I change my mind after I have written a living will?

Many states allow that you may revoke a living will at any time and in any manner. All that you must do is tell your doctor or other health care provider that you are revolting it. Someone who saw or who heard you revoke your living will may also tell your doctor or other health care provider about the revocation. You can also change or rewrite your living will. If you change your mind after you have written down your instructions, you should destroy your written instructions or revoke them and write new ones. You should also consider telling everyone who participated in your decision-making process that you have changed your mind and give a copy of any new instructions to your doctor, health care provider, and anyone else who had a copy of your old instructions.

See also…

Wills, Trusts, Estates

Law Wiki: Wills and Trusts