An advanced care directive, commonly known as a living will is something everyone should have. A living will is a legal document that states specific directives regarding medical treatments that must be followed by caregivers or the person appointed power of attorney for health care decisions if you are unable to give informed consent. A living will ensures that your wishes are carried out.
What Does a Living Will Cover?
There are some people that think a living will is used only to direct health care providers to withhold necessary medical treatment. While many do use a living will for this type of instruction, a living will is also a way for a person to ask for all available medical techniques and treatments should they want them. Living wills are complicated because they deal with medical issues so it is always a good idea to consult with your doctor so he can clarify any treatments or techniques you are unsure of.
One thing to keep in mind is that a living will's legality does not take effect until the patient has been medically determined to be terminally ill or is in a permanent vegetative state, unable to communicate medical wishes.
The Difference between a Living Will and Durable Power of Attorney
Some functions of a living will can be performed by a durable power of attorney. The document gives the attorney legal power to make any health care decision for a person who is unable to make those decisions for themselves, in some cases it also allows the durable power of attorney to use his/her own judgment. Unlike a living will, a durable power of attorney does not depend on a vegetative state or terminal illness in order to be used. A good example of someone who would be incapable of making their own sound medical decisions is someone with Alzheimer's.
If you choose not to have a living will or appoint a durable power of attorney your family members may end up fighting and arguing over what treatment you should or should not be receiving. Even though a doctor will consult with your family they still may be split in the decision making. Since doctors only consult with family members, if you are unmarried the living will and durable power of attorney will enable them to have a say in your health care decisions.
An Attorney-In-Fact
An Attorney-in-Fact is the person you assign power of attorney. Whomever you chose as the proxy for health care decisions or attorney-in-fact needs to be someone you trust and is comfortable talking about medical issues. An assertive and diplomatic individual is the preferred choice because you are choosing someone to be your advocacy. They may need to argue with the doctors and even your family members, and in some cases, go to court and fight on your behalf. You need someone who is aware of the choices your have made and will support any and all instructions you have laid out.
More people are choosing to have a living will as it takes the pressure off family members when it comes to making important medical decisions. Medical decisions should never be made with your emotions, but unfortunately it happens too often. This is why a living will is a very important document to have.
Forms For Living Wills
A living will is also known as an advance directive, and it is a written document indicating a person's wishes in the event that they are reduced to a vegetative state by some accident or trauma, and whether doctors treating them should go to all efforts necessary to keep them legally living, or to "allow nature to take its course".
Unlike a legal will, courts have not generally recognized the significance of living wills, and the existence of one would not necessarily be legally binding. Most countries in the world have introduced little or no legislation to codify their status for the judiciary. That said, much of what judges and magistrates do is apply the intention of the law to new, unique situations. Therefore, the presence of a living will would factor very heavily in any deliberation by a judge, should your living will be challenged.
One thing a living will cannot do - and this is probably why lawmakers have been reluctant to legislate - is protect a doctor from malpractice, should she be put into a position where she has to decide between attempting to treat a patient who may recover, and obeying the wishes you expressed in your living will.
Of course, there are always circumstances and events which we could never foresee, particularly where death is concerned. Where someone like a community spouse or family member has doubts about whether you would make the same decision now, knowing all the facts, they have grounds to challenge the contents of a living will in a court. If they were able to produce a compelling explanation, they would have a good chance of convincing most courts.
Since there is no legal specification for living wills, there are no official government or municipality forms to pay for and fill out. You might notice, however, that many law firms give free living will forms out on their websites. Such firms have usually just drawn up a fairly standard written declaration that expresses your intentions should any of a number of possible things render you unable to make or express a decision at the time. Most of the living will forms offered at no charge are as robust a legal document as an advance directive can be.
Living will forms have a fairly similar structure addressing a number of key areas: Choice of whether or not to prolong life; whether painkillers should be administered as needed regardless of the chances that this will reduce or end the life of the patient; contact details of your personal doctor; whether you wish to donate organs, which ones, and for what reasons; and finally a declaration that it is your wish and right to refuse medical treatment, and that you have an informed idea of what this means. Usually a living will form includes areas for witnesses and an advising physician to sign the document alongside yours.
Unfortunately, no matter how shrewd a legal document you are able to craft, the advance directives issued in living wills are legally powerless. Ethicists grapple with the extra complications that the instructions of a living will introduce, while most lawmakers dare not tread near the issue.
At the end of the day, if there's a conflict between the informed advice of the doctor, the wishes of the family, and the advance directives of the patient, the outcome will not be satisfactory to all involved.
Both Maria Sandella & Andrew Stratton are contributors for EditorialToday. The above articles have been edited for relevancy and timeliness. All write-ups, reviews, tips and guides published by EditorialToday.com and its partners or affiliates are for informational purposes only. They should not be used for any legal or any other type of advice. We do not endorse any author, contributor, writer or article posted by our team.
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