The Living Will
INTRODUCTION
Health care documents have been given a lot of press lately. Months after the Theresa Maria (Terri) Shiavo case, people are still inquiring about living wills. Many people have concerns regarding what a living will is, whether or not they need one, how to get one, and what other documents they need. This Advisory will answer those concerns.
WHAT IS A LIVING WILL?
A living will differs from a will! A living will is a legal document that describes a person’s desires regarding medical care in the event that person is unable to make a medical decision when either death or a perpetual vegetative state is imminent. Usually, a living will directs a doctor or end of life care giver to end treatment and/or nutrition and hydration when death or a vegetative state is a certainty. It does not allow a proxy to make health care decisions for you as a power of attorney does. Most if not all states, will allow a patient to end treatment in end of life situations. However, the states are split regarding whether the patient can have nutrition and hydration removed. In Florida, such as in Terri Shiavo’s case, hydration and nutrition can be removed. Had she been in Illinois, Terri would still be alive today as the Illinois statute specifically disallows nutrition and hydration tubes to be removed if such removal will be the only cause of death. Most states require certain formalities such as a person’s signature, witness signatures, and in some states a notary stamp and verification of the person’s name. Because of the statutory formalities, it is best to have a living will drawn up and executed with an attorney.
DO I NEED A LIVING WILL?
When patients are faced with imminent demise, U.S. Supreme Court precedent establishes that a doctor cannot end care, nutrition, or hydration without clear and convincing evidence establishing the fact that the patient desires death as to living in a vegetative state. To establish clear and convincing evidence, a trip to court may be and is probably required in most circumstances when a living will is not present. Therefore, a living will is an extremely good idea to express your intentions, whatever they may be. It is my recommendation that everyone not wishing to live in a vegetative state have a living will on file with a hospital or it be carried with you.
HOW IS A LIVING WILL IMPLEMENTED?
Implementing a living will is extremely easy. Many lawyers draft and execute living wills. The Center for Financial, Legal & Tax Planning, Inc. can draft and execute living wills upon request. Once a living will is drafted and executed, it then only needs to be put on file and be available to a hospital in the event of need. If and when the time comes for the living will to be used, it will be right there for the doctors and care givers. In the event you travel a lot, it is probably a good idea to carry a card instructing emergency response and notify the care givers to contact the hospital. In the event you are in another state than your living will, the living will will be given full faith and credit treatment as long as that state’s legal requirements are met. Therefore, it is a good idea to have a living will notarized and signed by three witnesses to fulfill nearly all states requirements.
WHAT OTHER DOCUMENTS ARE NECESSARY?
It is a good idea to have a healthcare power of attorney, a will, and a durable power of attorney. These documents will be discussed in future editions of this Advisory, so stay tuned and contact the experts at The Center for any questions or to implement your own living will and other estate planning documents.