Living Wills - the Basics
Michael L. Laribee, Esq.
A living will is an important part of an estate plan that allows a competent adult (the “declarant”) to state his or her preferences for medical treatment in certain situations. Unlike a last will and testament that directs how property and assets should be distributed after death, a living will allows the declarant to decide in advance whether they want life-sustaining treatments, like a ventilator, CPR, or a feeding tube, in the event they become terminally ill or permanently unconscious and when can no longer communicate their wishes. To be clear, a living will is only effective when the declarant is unable to speak for themselves and direct their healthcare.
For purposes of a living will, a terminal condition is defined as an irreversible, incurable and untreatable condition caused by disease, illness or injury from which there can be no recovery and death is likely to occur within a relatively short time if life-sustaining treatment is not administered. A permanently unconscious state is defined as an irreversible condition in which the declarant is permanently unaware of himself or herself and surroundings and is unable to suffer or feel pain. At least two physicians must examine the declarant and confirm the declarant’s condition. The physicians must also determine that there is no reasonable possibility that the declarant will regain the capacity to make informed decisions and that the life-sustaining treatment would mainly prolong the process of dying.
If the declarant is either in a terminal condition or in a permanently unconscious state, the living will directs the declarant’s physician to issue a DNR (do not resuscitate) order and to allow the declarant to die naturally. The declarant’s physician would administer no life-sustaining treatment, including CPR, however the declarant would receive comfort care necessary to make the declarant comfortable and to relieve their pain.
The living will must be signed by the declarant at the end of the document and witnessed by two witnesses or notarized by a notary public. The witnesses must be adults who are not related to the declarant by blood, marriage, or adoption, who are not the attending physician of the declarant, and who are not the administrator of any nursing home in which the declarant is receiving care.
If a declarant has both a living will and a valid durable power of attorney for health care, the living will supersedes the durable power of attorney for health care to the extent that the provisions of the documents would conflict. In other words, a health care agent cannot override the declarant’s wishes in a living will.
A living will has no expiration date. However, a declarant can revoke the living will by notifying their physician and physically destroying the original and all copies. Hospitals and physicians are permitted to rely on a copy of the living will instead of the original. Further, the living will often includes a statement that the declarant intends that the living will be honored in another state to the extent allowed by law.
Ultimately, a living will allows a declarant to control their healthcare. It reduces stress for loved ones and prevents disagreements among family members during emotional situations. By clearly stating healthcare wishes in advance, you ensure that your voice is heard when you are unable to communicate your wishes. It is important to seek the assistance of an attorney to make sure that the living will is properly prepared and executed. Laribee Law, LLP is here to assist you with preparation of a living will and your other estate planning documents.
Michael Laribee is a partner in the Medina law firm of Laribee Law, LLP. This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights.