Why You Need To Make A Living Will – How And Where To Get One
Unless you spell out what you’d want if you were medically incapacitated, your life is not in your hands. Terri Schiavo’s much-publicized court case got everyone talking about a living will - a legal document that describes what you would want to happen if you were in a medical crisis. Everybody needs one.
What’s a living will?
A living will is an expression of desire and intent signed by you that says you want the right to die a natural death free of all costly, extraordinary efforts to maintain your life when that life can only be sustained by artificial means. In layman terms, a living will is a simple legal document (also known as the Advance Health Care Directive) that describes, in clear detail, just what you want done — or not done — with your flesh should you for some tragic or otherwise unforeseeable reason become unable to speak or eat or think or move or function for yourself.
What purpose does it serve?
Many of us don’t like to think about those possibilities. We either avoid them as too unpleasant to contemplate or we tend to view ourselves as somehow invincible and immortal. Yet that avoidance could cost your family and you dearly, a cost that can be avoided through some simple planning. It makes difficult decisions easier (not to mention less costly) on the doctor, the hospital, and your family: if you become incapacitated without having a living will, the governments of most provinces, through appropriate agencies, will decide who your representative will be among your family members. A family member who is lower in rank on this list cannot override the decision of someone who is higher up.
Companion document: the health care proxy
Since a living will doesn’t go into effect until you’re terminally ill or permanently unconscious, many legal experts advocate also writing up a “health-care power of attorney.” When spelling out your end-of-life wishes in an “advance healthcare directive“, you’ll need to address two major issues: designating someone to make healthcare decisions for you if you can’t (accomplished through a durable power of attorney for healthcare, sometimes called a healthcare proxy) and deciding what kind of medical care you want if you become severely ill or injured (that’s the living will, or its equivalent if your state is one of the handful that don’t have a living-will law).
The health care proxy form gives the person you designate (agent or attorney-in-fact) the authority to make most health care (including dental, nursing, psychological, and surgical) decisions for you if you lose the capacity to make informed health care decisions for yourself. This authority is effective only when your attending physician determines that you have lost the capacity to make informed health care decisions for yourself. As long as you have the capacity to make informed health care decisions for yourself, you retain the right to make all medical and other health care decisions. That’s why it’s called a “springing power of attorney“. The springing power takes effect only if the incapacity occurs, which means the holder of that power may use it only when the grantor is incapacitated.
When does the living will apply?
A living will documents your wishes when it comes to life-sustaining treatment should you be unable to make informed medical decisions and are in a terminal condition or in a permanently unconscious state.
Life-sustaining treatment means any health care, including artificially or technologically supplied nutrition and hydration, that will serve mainly to prolong the process of dying. Terminal condition or terminal illness means an irreversible, incurable and untreatable condition caused by disease, illness or injury. Your physician and one other physician will have examined you and believe that you cannot recover and that death is likely to occur within a relatively short time if you do not receive life-sustaining treatment. Permanently unconscious state means an irreversible condition in which you are permanently unaware of yourself and your surroundings. Your physician and one other physician must examine you and agree that the total loss of higher brain function has left you unable to feel pain or suffering.
A living will cannot cover all contingencies. For example, the code “DNR” means “Do Not Resuscitate” (or try to keep alive) when the body begins to fail. But a temporary condition that is treatable, like pneumonia, for example, may be a good reason to place someone on a life support system like a ventilator when there is good cause to believe the person may recover, and that the technology does not prolong the inevitable.
Your living will may be effective only in the state where you reside. Because every state has slightly different requirements (some may require two witnesses to sign; a few want the document notarized), make sure you download a form specific to where you live and/or check to see whether it can be honored elsewhere. If not, you may want to draw up another document on occasions when you travel extensively outside your state or move to another region. If that should happen, you probably should designate another person as your representative.
How and where to get your living will and health care proxy
Hire a professional. Because state laws for creating and validating a living will vary, it’s worth ponying up the roughly $250 to $500 that it will cost to hire an attorney to help you through the process. You’re talking about what you want done at the end of your life, and you want to make sure it’s done right. An estate- or elder-law attorney will know what your state requires.
Pick a healthcare agent. Often times the agent is a spouse or an adult child; the key is to pick someone who knows you well and will be able to do what you would wish if you become incapacitated, even if it’s different from what he or she would choose. Experts recommend naming just one person and perhaps an alternate. Decision by committee only opens the door to painful squabbling.
Write the living will. This document may be as open ended or as specific as you wish. You’ll need to consider under what conditions you’d want to be kept alive through artificial respiration, and you should also address whether you’d want food and hydration through artificial means. This is also the vehicle to discuss organ donation and burial instructions.
Factors to consider
A living will should be discussed comprehensively with your intended designee. He or she should agree to serve as your representative before drawing up the legal forms. Explain the role you want this person to play along with any caveats that he or she should be aware of. Put your instructions in writing, with a copy for the attorney and possibly your doctor.
Your living will should be kept up to date. For example, you may arrange one while in a certain state of health, but experience a health change a few years later. When changing your living will, be sure to keep your designee informed about any decision-making alterations.
A living will may not be suited to everyone. Discuss the pros and cons carefully with your family and an attorney before making a decision and naming a representative. Most doctors and medical personnel will be happy to explain this concept in detail to help you come to a comfortable decision.
Finally, consider signing up with a document registry. If you are in an accident or fall ill out of state, how will that hospital know what your wishes are? Companies like DocuBank keep your information on file and give you a wallet card with an 800 number that healthcare professionals can call for access to your documents. Keep the originals at home, and give copies to your healthcare agent and your doctor.
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