Ten Questions and
Answers on Living Wills
1. What is a living
A living will is a legal document that describes
the wishes of the person signing it (the "principal")
for end-of-life medical treatment. The living will "speaks"
for the principal if he or she becomes incapable of making
medical decisions. A living will is referred to as an "advance
directive" because it is signed in advance of possible
mental incapacity. The document can be analyzed into three
parts: The first part states that the document is to be considered
if the person has lost the ability to make medical decisions.
(Some living wills require "permanent" loss of such
ability.) Second, it states a medical condition as the criteria
to which the wishes apply in such language as : "When
I am permanently unconscious..." or "When I can
no longer communicate with my loved ones..." Third, it
usually provides the kind of treatment that is unwanted. It
may, for example, refuse generally "all life sustaining
treatment" or, refuse specifically "artificial ventilation,
nutrition and hydration, antibiotics," etc.
Some living wills, by contrast, may require
continuation of treatment, irrespective of the principal's
condition, and say: "If I am unable to make my own medical
decisions, even if I am permanently unconscious, I wish to
have all medical care continued."
2. Who can sign a living
The law permits health care decisions to
be made by anyone who: 1) is over 18 years old; 2) has married;
or, 3) is the parent of the child. A living will, which is
a substitute for a person's own decision-making, can be used
by anyone who is legally entitled to make their own health
3. What triggers the
use of a living will?
A living will is triggered by the loss of ability to make medical decisions and the meeting of the medical criteria which the principal established in the document. A living will does not appoint any specific person to act on the patient's wishes, but is by definition, addressed to medical personnel and acts, usually, as a refusal of consent to treatment which would otherwise require a consent.
4. Are formalities required
for signing a living will?
Unlike most states, New York has no form
prescribed by law for a living will. Accordingly, the best
practice is to use the procedures established for the most
similar document. A health care proxy can be used as a guide.
A New York health care proxy requires two
witnesses to the signing. Out-of-state statues often also
require notarization of all signatures. For optimum acceptability,
two witnesses and notarization is the safest practice.
5. What are the advantages
of a living will?
If a person has no health care agent to appoint
in a health care proxy, a living will is the only means by
which someone can express wishes about future medical treatment,
if they become mentally incapacitated. It also functions as a reminder of past discussions and may be used to support the exercise of powers of a health care agent.
6. What are the disadvantages
of a living will?
Living wills are inflexible documents whose usefulness depends upon the luck of a principal to anticipate ahead of time what medical conditions may occur in the future. Although it may be relatively simple to request the withholding of "all life sustaining treatment" upon "permanent unconsciousness," for example, it is not simple to provide instructions in cases of dementia and general decline. If written too narrowly, it may limit the ability of medical personnel to withhold unwanted treatment.
7. Can a living will
be used out-of-State?
Although theory would answer "yes"
to this question, the practice may not conform. A person has
the right to have medical treatment wishes followed under
the U.S. Constitution, but many states have standardized forms.
Exercising the right expressed in the wrong form could require
court intervention. For frequent travelers, it is desirable
to sign forms of the states where they spend extended time.
8. Should a person
have both a health care proxy and a living will?
A person can have both a health care proxy and a living will but making both accessible to medical personnel can create problems. Often the living will does not address the particulars of the situation at hand when decisions are needed. In that case, the health care agent’s decision can appear to contradict the living will and the apparent conflict can require court intervention. Living wills are best held privately for the use of the agent and family. They are also effective in lending moral support to the agent and family. If the principal has not had much discussion with the health care agent; it may inform the agent of the principal’s wishes.
9. Where should a living
will be kept?
The answer to this question depends upon
whether the person has a health care agent. If, the principal
has an agent, the living will is best kept with the health
care agent only. If there is no agent, a living will should
be given to the patient's doctor, hospital, close friends
and provided to home health aides.
10. What are
common misunderstandings about living wills?
The unfortunate use of the word "will"
often leaves people confused about its relationship to a "Last
Will and Testament". The name is unfortunate as it has
nothing to do with a testamentary will and, in fact, is the
opposite in every way. A living will is for the treatment
of the individual’s body, not his or her assets, as with a
will. Furthermore, it is effective only during the person’s lifetime, not
after death, as with a testamentary will. Finally, it appoints no agent, unlike
a will which appoints an executor.
to the main Significant Documents Chart
top of page