What is a living will?

A living will is written legal document that indicates your desire to withhold or withdraw certain medical care based on your health circumstances. Most states provide that the living will be in a form like the following:

“I have the primary right to make my own decisions concerning treatment that might unduly prolong the dying process. By this declaration I express to my physician, family and friends my intent. If I should have a terminal condition it is my desire that my dying not be prolonged by administration of death- prolonging procedures. If my condition is terminal and I am unable to participate in decisions regarding my medical treatment, I direct my attending physician to withhold or withdraw medical procedures that merely prolong the dying process and are not necessary to my comfort or to alleviate pain. It is not my intent to authorize affirmative or deliberate acts or omissions to shorten my life, rather only to permit the natural process of dying.”

How is a living will made?

Anyone who is competent and 18 years of age or older can make a living will by signing and dating a statement like the above, either typed or handwritten, before two witnesses. The witnesses must be at least 18 years of age and, in order to avoid legal issues, should not be related to the person signing the declaration, a beneficiary of his or her estate, or financially responsible for his or her medical care. Consider that while it is important to prepare a living will before any hospitalization or impending surgery, you should avoid deciding in a short period of time.

Limitations of living wills

State statute provides significant limitations to a living will. Terms such as “death-prolonging procedure” and “terminal condition” are used to specify the circumstances to which a living will applies. Both of these terms are related to conditions where death will occur within a short period of time if additional treatment is not provided. A living will is intended only to avoid treatment when death is imminent and treatment ineffectively avoids or significantly delays death. Also, statutes prohibit a living will from withholding or withdrawing artificially supplied nutrition and hydration including sustenance supplied through a feeding tube or intravenously.

Alternatives to living wills

If you would like to provide health care instructions beyond the scope of a living will, you may create an advance directive instead. An advance directive allows you to provide instruction regarding the degree of medical care you would like to receive in particular circumstances when you are unable to refuse treatment yourself. While a competent patient may refuse treatment himself or herself, an incapacitated person may rely on an advance directive in order to ensure that his wishes are carried out. Recently, courts have provided people the opportunity to exceed the limitations of living will statutes in advance directives. Advance directives may include instructions to withhold or withdraw artificially supplied nutrition and hydration or other treatment or machinery which may maintain a patient in a persistent vegetative state. Additionally, advance directives do not need to be composed in any standard form and may include which procedures may or may not be used as well as the effective timeframes. However, like living wills, advance directives should be signed, dated and witnessed.

What should I do with my living will?

It is important to ensure that your living will or advance directive is easily accessible as it may be needed at a moment’s notice. While some people ensure that they always have a copy with them, you should provide your physician with a copy at minimum. This not only notifies him of your desires in the case of an emergency but also provides you with the opportunity to discuss your medical options. You should also provide a copy to your attorney-in-fact in the case of your incapacity. Additionally, if you are hospitalized it is important to ensure that a copy has been included with your medical records. It is wise to sign multiple copies of your living will or advance directive.

Revoking a living will

A living will or advance directive may be easily revoked or cancelled. Either an oral or written statement may revoke your wishes. It is best to gather and destroy all copies to prevent any confusion. Many state statutes require that a note of revocation of a living will be placed in the medical records.

Why give an advance directive?

Advance directives allow you to accomplish at least two things regardless of whether they provide guidance on some, all or no treatment. First, they allow you to establish the degree of treatment you would like. Second, they remove the burden of making difficult health decisions from your family members while they are emotionally distraught. Of course, providing explicit direction also helps avoid litigation.

Additional resources provided by the author

Peter D. Antonoplos, Esq. is a partner in the Law Firm of Antonoplos & Associates. Mr. Antonoplos’ practice focuses on estate planning, real estate, probate and business & corporate law matters. Mr. Antonoplos is admitted to practice in the District of Columbia, New York State, and the State of Maryland. Mr. Antonoplos routinely lectures on real estate, estate planning, probate and business & corporate law issues in Washington, D.C. and New York. Mr. Antonoplos is a graduate of Yale University and Georgetown University. He lives in Washington, D.C. with his wife and children. He is an avid chess player and motorcycle enthusiast. He may be reached at 202-803-5676 or Peter@AntonLegal.com.