When you are creating your estate plan, it's important to understand that it's more than just your will that we're talking about. One document that creates a lot of discussion is a living will. A living will, a fundamental component of advance care planning, is a legally binding document that articulates an individual's preferences for medical treatment in scenarios where they are incapacitated and unable to communicate their decisions. This directive serves as a guide for healthcare providers and family members, ensuring that medical care aligns with the patient's desires during critical health situations.
One of the interesting parts of this discussion is that my clients don't always want a living will. In fact, it is often a 50/50 split amongst my clients as far as who wants a living will and who doesn't. It's an option I give my clients, but many clients will read through the document, give it some thought, and then decide they do not actually want to sign a living will as part of their estate plan.
It's a good example of making sure that your estate plan is tailored to your individual needs and that you are getting the documents that you actually want. I've met with a few clients who've used an online website to prepare their documents and they just sign whatever they were given, without considering whether it's what they want or not. A Living Will is a great example of a document that you should understand before you sign, does it align with your goals? Does it belong in your estate plan? You need to know these things before you blindly sign your documents.
What is a Living Will?
The primary purpose of a living will is to provide clear instructions regarding medical interventions an individual wishes to accept or decline in life-threatening circumstances. This includes decisions about resuscitation, mechanical ventilation, tube feeding, dialysis, and other life-sustaining treatments. By specifying these preferences in advance, individuals can:
- Maintain Autonomy: Ensure that their healthcare choices are respected even when they cannot actively participate in decision-making.
- Alleviate Family Burden: Prevent family members from facing the emotional stress of making challenging medical decisions without guidance.
- Reduce Conflicts: Minimize potential disagreements among family members regarding the appropriate course of action.
For instance, the Mayo Clinic emphasizes that advance directives, including living wills, guide choices for doctors and caregivers if an individual is terminally ill, seriously injured, in a coma, in the late stages of dementia, or near the end of life.
What's in a Living Will
A comprehensive living will typically addresses several critical aspects of medical care:
- Resuscitation Preferences: Instructions on whether to perform cardiopulmonary resuscitation (CPR) in the event of cardiac or respiratory arrest.
- Mechanical Ventilation: Decisions about the use of machines to assist with breathing if independent breathing becomes impossible.
- Nutritional and Hydration Support: Preferences regarding artificial nutrition and hydration through feeding tubes or intravenous methods.
- Pain Management: Guidelines for administering pain relief, even if such measures might hasten death.
- Organ and Tissue Donation: Indications of the desire to donate organs or tissues after death.
These components ensure that medical treatment aligns with the individual's values and wishes, providing clarity in complex medical situations.
Living Will v. Other Advance Directive Documents
It's essential to differentiate a living will from other legal instruments in healthcare planning:
- Living Will: Specifies an individual's preferences for medical treatment in situations where they cannot communicate their decisions.
- Durable Power of Attorney for Health Care (Health Care Proxy): Designates a trusted person to make healthcare decisions on the individual's behalf if they become incapacitated.
While a living will provides specific instructions, a health care proxy allows for more flexible decision-making by the appointed agent, especially in unforeseen circumstances.
Steps to Create a Living Will
Establishing a living will involves several deliberate steps:
- Reflect on Values and Treatment Preferences: Consider personal beliefs and the extent of medical interventions desired in various health scenarios.
- Consult Healthcare Professionals: Discuss options with doctors to understand the implications of different treatments.
- Appoint a Health Care Proxy: Even with a living will, designating a trusted individual to make decisions ensures that unforeseen situations are managed according to one's values.
- Document Wishes Legally: Use state-specific forms or consult legal professionals to draft the living will, ensuring it meets all legal requirements.
- Communicate with Family and Healthcare Providers: Share the existence and contents of the living will with family members and doctors to ensure awareness and adherence.
One of the first steps in creating a living will is to decide what kinds of medical care one would want to receive in an emergency, balancing quality and quantity of life.
Limitations on Your Living Will
Despite their importance, living wills may face challenges:
- Accessibility Issues: In emergencies, the document may not be readily available, leading to decisions that might not align with the individual's wishes.
- Interpretation Variability: Ambiguities in language can result in differing interpretations by healthcare providers and family members.
- Changing Medical Circumstances: Advances in medical treatments can present scenarios not anticipated when the living will was drafted.
To mitigate these challenges, it's essential to ensure that the living will is clear, specific, and regularly updated. Additionally, discussing one's wishes with both the appointed healthcare proxy and family members can help prevent conflicts and ensure that decisions align with the individual's values.
A living will is a vital tool in healthcare planning, empowering individuals to maintain control over their medical treatment even when they cannot communicate their preferences. By thoughtfully considering and documenting healthcare choices, individuals can ensure that their values guide their care, providing peace of mind for themselves and clarity for their loved ones.
Do You Need a Living Will?
If you need a Living Will, or a full estate plan, let's schedule a Legal Strategy Session online or by calling my Edina, Minnesota office at (612) 294-6982 or my New York City office at (646) 847-3560. My office will be happy to find a convenient time for us to have a phone call to review the best options and next steps for you to work with an estate planning attorney to get your plan prepared and implemented.
