What is a Living Will?

A living will is part and parcel of estate planning.

A living will is part and parcel of estate planning.

A living will is a written document that you can create that allows you to state your wishes in advance about the use of life-prolonging medical care if you become seriously ill or incapacitated. While many people think this document is about authorizing abandonment by the medical system, a living will also can be used to state a desire to receive medical treatment that will sustain life. In all cases, the living will comes into effect only when you would die without life-sustaining medical treatment.

All states recognize living wills, which sometimes are called “medical directives.” But, there are two types of living wills, and it might behoove you to check with the laws in your state before you decide which route you want to take:

  • Statutory: Statutory living wills are thought to provide medical providers with more immunity from liability of they comply with your wishes. These living wills generally address only terminal illness and permanent unconsciousness. Depending upon your resident state, these documents may or may not be able to address advanced illnesses, such as late-stage Alzheimer’s disease, in which death is not yet imminent. Detailed witnessing and notarization of this document may be necessary. Although some states may require mandatory forms, you can expand on your options and individualize the living will by stating your preferences.
  • Non-Statutory: These living wills do not comply with any one state’s specific instructions for this document. The only problem with this type of document is that, while doctors and hospitals may abide by your wishes, in some cases they may make an effort to transfer you to another provider if they cannot go along with your wishes through either a conscience decision or with a decision based upon fear of litigation and lack of immunity from criminal or civil law.

The main problem behind either type of living will is the language. Living wills can either be too vague or too specific. If you decide you want to institute a living will, try to utilize the help of a health-care power of attorney (HCPA), or a person who can make a decision for you if you are incapacitated and your living will is too vague. Additionally, you should update your living will every few years – just as you would update your will. Your values and wishes may change over time and the law itself may change.

For more help and advice about your living will, contact the National Hospice and Palliative Care Organization.

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