Have you ever given any thought to writing out a Living Will? Also known as an Advance Healthcare Directive or an Advance Medical Directive, a Living Will is a legal document that provides your family, doctors, and caregivers with vital information about what life-saving measures you wish to undergo should you ever end up in a position where you are unable to communicate your wishes. Within the Living Will, a number of aspects are considered, including resuscitation options, medical guidelines, and any wishes you may have regarding life support.
What is a Living Will?
1. The purpose
In the event of a terminal illness or a serious accident, a Living Will conveys your instructions for life-sustaining medical treatment. It also names someone to serve as your agent - usually a spouse or family member.
2. The risks
Without a Living Will, you risk having your decisions about your medical treatment made without your consent. This includes starting, maintaining, and ending life support systems. Furthermore, without a Living Will, your family members may disagree about the right course of action in an emergency.
3. The limitations
While a Last Will and Testament provides instructions for any disposition of your property after your death (with the exception of organ donation), a Living Will does not cover every situation. For instance: you may need treatment that has not been contemplated by your Living Will. In this situation, an agent, appointed by a Medical Power of Attorney will make medical decisions for you when you are incapacitated.
4. Create a Medical Power of Attorney
Alongside writing a Living Will, you should also create a Medical Power of Attorney, allowing you to appoint someone to make medical decisions for you.
5. Create a Physician Orders for Life-Sustaining Treatment (POLST):
This program ensures that the medical treatment you have expressed is honored by health care professionals, as you move from one health care setting to another. This program is helpful if the health care workers have no access to your Living Will, or if it is not specific enough on treatments that you may or may not have wanted. Furthermore, in creating a POLST, you may include a DNR (Do Not Resuscitate) order. It can also state your wishes with respect to intubation, antibiotic use, and feeding tubes. A POLST is important as doctors may sometimes ignore your Living Will.
Preparing to Write a Living Will
1. Talk to your doctor
Before writing up your Living Will, it is important that you speak with your doctor, ensuring that you clearly understand what your choices would mean. Decisions should not be made lightly as some of the terms used in a Living Will can be confusing. For example, it is important to know the difference between resuscitation and life support.
Resuscitation is the act of bringing a person back to life after the heart has stopped. On the other hand, life support is a system that uses a ventilator or feeding tube to keep you alive when you are unable to do so on your own.
2. Discuss your decisions with your family
Discussing your wishes with your family and loved ones will help you get an idea of whether they would be comfortable in carrying out your instructions. In writing out your Living Will, you want to make sure that your family will not interfere with your wishes.
3. Consult with a lawyer
Speak to an experienced trusts and estates attorney to discuss your Living Will and other directives, such as a Medical Power of Attorney.
4. Appoint an agent
When doing so, appoint someone who is not opposed to or is uncomfortable with your choices, and make sure that your agent will follow your instructions. People generally appoint a spouse or an adult child as their agent. It is important that they know that you have appointed them as their agent. You do not want it to be a surprise should they need to undertake the responsibilities of the position.
Furthermore, it is important to express to whoever you choose that your choices be enforced. It is not unusual for doctors and hospitals to ignore provisions contained within a Living Will. Your agent will, therefore, need to be forceful with medical professionals while advocating on your behalf.
5. Define the authority of your agent
Your Living Will can define the amount of authority your agent will have. It is generally advised that you give your agent broad authority, as they are more likely to be able to carry out your wishes in an unforeseen circumstance. An alternate agent may also be appointed in case your first choice is unavailable. However, it is essential that you only appoint an alternate if you fully trust them to carry out your wishes.
6. Disqualify an agent
In your Living Will it is also possible to disqualify people from serving as your agent, particularly if you are concerned that someone will try to override or not follow your wishes, due to a disagreement with your views. In the US, it is important to consider any state restrictions among those you have named your agent. For instance, in most states, certain people cannot be your agent.
This includes your doctor, staff of health care facilities, nursing home facilities, employees of government agencies or any person who is already an agent for someone else.
7. Change your mind
Even after you have written up your Living Will, it can be changed or canceled. In case you change your mind, you should immediately notify anyone who has a copy of the Living Will, including your agent and your doctor. If possible, destroy all copies and make a new one.
Writing a Living Will
1. Get the appropriate form
While many states provide Living Will forms which you can use, you are not required to do so. If it does not fit within your circumstances, you can draft your own Living Will.
2. Prepare your own document
To complete your own Living Will document, you need to follow a certain formula, ensuring that it has all of the necessary information and is legally binding. Eight sections need to be included in your Living Will, each covering a specific stipulation for your care.
3. Write sections 1 and 2
Section 1 discusses the health care agent - this includes your name as the creator of the Living Will, as well as the full name, address and contact number of the person who you have appointed as your agent. In section 2, your alternate agent is named, should you decide on one.
4. State the effective date and durability
In section 3, you need to state the date from which your Living Will will be effective. Generally, statements such as 'if and when the writer cannot make health care decisions' are used. In this case, a doctor will determine when this happens unless you state otherwise. It is also possible to state that you would like two doctors to make the determination of incapacity.
5. Define the agent's powers
In section 4 of your Living Will you need to state what specific powers your agent will have. Preferably, they should be as broad as possible. In setting specific limits, your agent will not have the authority to make any decision to stop any type of health care. Nevertheless, in section 5 and 6, your agent must still follow your wishes and directions, regardless of how broad their power is.
6. Instructions for end-of-life treatment
Section 5 looks into the specific guidelines for how you want your medical treatment to be handled. Here, you may give general or specific instructions about your wishes for end of life care. Specific instructions about issues such as blood transfusions, electroconvulsive therapy, amputation, certain types of surgery, and resuscitation should also be included.
You may, for instance, instruct your agent to refuse any specific types of treatment that are against your religious beliefs,or are unacceptable to you for any other reason, such as a blood transfusion or life support.
7. Explain limitations
In the next section of your Living Will, section 6, you need to explain health care instructions that do not deal specifically with end-of-life matters, and that may arise while you are unable to help yourself. For example, you may want to include your wishes about medical treatments required to keep you alive. You can also state if you want your agent to agree to your admission to a nursing home.
8. Protections for third parties
Section 7 enables you to lay out any protection given to third parties who follow your agent's decisions. In most US states, health care providers are not forced to follow the instructions of your agent if they object to them for any reason. However, most states require providers to transfer you to another provider who is willing to honor the Living Will.
In this section, you should, therefore, include doctor compliance with the Living Will without the fear of being held liable civilly. In your Living Will, you could state that: "no person who relies in good faith on any representations by my Agent shall be liable to me, my estate or my heirs for recognizing the Agent's authority." In doing so, the doctor might feel more comfortable following the wishes you have laid out in sections 5 and 6.
9. Specify organ donation options
Section 8 enables you to specify if you want to donate your organs at the time of your death. If you are already an organ donor, you do not have to specify this unless you want to make sure your wishes are followed.
10. Sign your Living Will
Once your document has been completed, you must sign and date the document for it to go into effect. You should get it signed in the presence of a notary to prevent any future problems. Some states in the US require that you have the document witnessed, so be sure to check that your Will is legally sound.
The video below sums up how to write a Living Will: