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Ten Questions and Answers on Living Wills

1. What is a living will?

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 will?

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 care decisions.

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.


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