How Does A Living Will Work?

By Deb Hipp

During a medical crisis, loved ones must often make decisions quickly on whether to withhold or provide life-sustaining treatments. An element of advance care planning, a living will is a legal document that provides specific instructions on how to carry out your wishes to receive or decline such treatments when you otherwise can’t communicate those wishes yourself.

You may already have a durable power of attorney for health care—a legal document that allows your designated agent or proxy to make medical decisions for you if you become incapacitated. Unlike that document, however, instructions in a living will can be used only when the person named in the living will has no hope of recovery or cure.

Adding a living will to your estate plan can mean the difference between your loved ones living with doubts later or knowing they made the right decision for you when you were unable to make end-of-life medical decisions for yourself.

What Is a Living Will?

A living will is a legal document expressing your wishes on receiving or declining medical care or life-sustaining treatments should you become terminally ill or injured and unable to communicate those decisions for yourself. Each state has its own laws on living wills, including definitions of life-sustaining treatments, restrictions and instructions that can be included in a living will.

The person named in the living will is known as the “principal” or “declarant.” However, terminology may differ depending on state laws. The person designated to carry out the wishes of the principal on the living will may be called the attorney-in-fact, health care proxy or another name depending on the state.

“The living will confers limited authority of the attorney-in-fact on behalf of the principal who is no longer able to communicate their preferences to withhold or withdraw artificial means of life support or life-sustaining treatments,” says Jane Fearn-Zimmer, an elder law and estate planning attorney and partner at Archer Brogan LLP in Cherry Hill, New Jersey.

What to Include in a Living Will

A living will should include your wishes for receiving or going without treatment when your condition isn’t expected to improve and treatment would extend your life for only a limited time.

“The living will is intended to apply only in very limited situations where the principal who signed the document has an incurable or irreversible medical condition or conditions that will probably result in the principal’s death within a short period of time—typically six months or less,” says Fearn-Zimmer.

Life-sustaining treatments addressed in a living will may include:

  • Heart-lung machines
  • Mechanical ventilators
  • Artificial nutrition (via feeding tube)
  • Artificial hydration (via feeding tube or IV)
  • Cardio-pulmonary resuscitation (CPR) or other extraordinary measures
  • Dialysis

“Living wills can [also] address issues like pain management and palliative care,” says Candace Dellacona, an estate planning attorney at Offit Kurman, Attorneys at Law, in New York City. “I even include provisions like ‘I would prefer to die at home’ in a living will.”

“You want to provide as much information as you can to make sure that your proxy isn’t making the decision for you, [but] rather your wishes and words are moving through your proxy,” she says. “The more information you can provide in your living will to your proxy to illustrate for them the type of care that you’d want to receive or decline, the better.”

Living Will vs. Advance Directive: What’s the Difference?

“In New York, an advance directive is a category of documents that includes a power of attorney for financial decisions, a health care proxy and a living will,” says Dellacona.

The purpose of an advance health directive is to make sure your wishes for medical treatment and/or life-sustaining treatments are documented and carried out if you become incapacitated and unable to communicate those decisions for yourself. Depending on the state, definitions of documents known as advance directives may have some overlap.

“A living will is a subset of advance medical directive,” says Fearn-Zimmer. “It’s a legal document with the limited purpose of enabling the person who executes the document to control their end-of-life medical care. It helps avoid a tragic and frustrating situation by allowing the person who executes the document to choose ahead of time whether they want to be kept alive by means of medical treatments and technologies like a feeding tube or a ventilator.”

A living will is typically utilized in the event of:

  • Physical incapacity due to a terminal illness or injury
  • Mental incapacity due to Alzheimer’s disease or another form of dementia
  • Loss of consciousness

With an advance medical directive, such as a living will or a power of attorney for health care, the principal executing the document may consent to receiving all means necessary to remain alive, including artificial medical treatments like hydration, feeding and respiration using a tracheotomy and a respirator or ventilator, says Fearn-Zimmer.

Alternatively, the document may instruct the attorney-in-fact to decline consent to surgery or artificial and other medical treatments.

Living Will vs. Medical Power of Attorney: What’s the Difference?

Like a living will, the durable power of attorney for health care may also list measures for end-of-life treatments or instructions to withhold certain types of treatments. However, there are important differences between these two estate planning documents.

“The health care proxy names the person to make the decisions, and it often includes a Health Insurance Portability and Accountability Act (HIPAA) waiver,” says Dellacona. “The living will describes the type of care that the person may wish to have or avoid.”

“In New York and in many states, a living will and health care proxy are separate documents. Some states combine them into one advance health care directive, sometimes referred to as a medical power of attorney,” says Dellacona. New York refers to a medical power of attorney as a health care proxy.

The durable power of attorney for health care allows the health care proxy you’ve appointed to carry out your wishes for medical care should you become incapacitated and unable to communicate medical decisions for yourself. The health care proxy’s duties may include consenting to or declining treatments that could possibly lead to your recovery.

In addition to that power, the health care proxy named in the health care proxy document is also allowed to carry out the wishes outlined in your living will for receiving or declining life-sustaining treatments.

“Living wills can be a helpful document for the person you named as your health care proxy to read so that they understand your wishes, especially in a time of crisis,” says Dellacona.

Living Will vs. Last Will and Testament: What’s the Difference?

A living will and a last will and testament may sound similar, but these legal documents serve entirely different purposes. Like their names imply, both serve to carry out the “will” or wishes of the principal. However, that’s where the similarities end.

A living will comes into play while the principal is still alive but incapacitated and unable to communicate decisions about receiving or withholding life-sustaining treatments.

On the other hand, a last will and testament takes effect upon the principal’s death. The last will and testament instructs the executor of the principal’s estate on distribution of certain property and assets.

Why Living Wills Are So Important

In a medical crisis where there’s no hope for recovery or another end-of-life situation, a living will can ease the intense pressure placed on the principal’s health care proxy to make decisions in accord with their wishes.

“The living will can make it easier for the proxy to understand what those wishes are and advocate for you if you can no longer advocate for yourself,” says Dellacona “[The living will] is also helpful if the proxy is facing pressure from other family members or others who may think you have a different view of care.”

Living wills also provide clear instructions to emergency medical staff.

“In an emergency life-or-death situation, every minute counts,” says Fearn-Zimmer. “The emergency medical team needs to know instantly whether to act in an emergency situation. The living will is short and sweet—maybe only one or two pages—and tells them what they need to know and who will give the authorization quickly in an emergency situation.”

Studies show both health care providers and family members experience increased anxiety and stress after making these decisions for their patients and loved ones. The presence of a living will can help provide them not only a sense of direction, but also welcomed relief.

How to Write a Living Will

An estate planning or elder law attorney can prepare a living will according to your instructions. Alternatively, you can use software purchased from legal document websites or certain state bar associations to prepare the living will yourself. Hiring an attorney to prepare your living will ensures the document complies with your state’s laws.

Many (but not all) states require two witnesses and notarization of your signature to execute the living will. You can revoke or revise a living will at any time.

To get a general idea of your state’s laws for living wills, you can look up state requirements at FindLaw. Make sure to double-check state statutes yourself on your state legislature’s website for accuracy.

The URL for the official website for your state legislature ends in “.gov.” If you’re preparing your own living will, make sure it meets the requirements listed on the official state website.

Lastly, remember a person’s wishes and values often change over time, particularly as illness arises and advances and one approaches their end-of-life journey. Therefore, a living will shouldn’t be a static document, but rather one that’s readdressed every few years to ensure it reflects a person’s current care preferences.

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