The Importance of Living Wills - "A Gift to Those You Love..."
by Don Drake, Connelly Law Offices, Ltd.
"One of the legal documents that I get the most questions about is the living will," said professional fiduciary and certified elder law Attorney RJ Connelly III. "Given that, I want to elaborate on this document and its importance. A living will is not a last will and testament used to pass your assets and property after you die, but it is a mechanism to communicate to your family and doctors how you want medical care conducted when you aren't able to do so. A living will is essential to an estate plan and is designed to help you and your family in an emergency. When you have one, your loved ones will never need to guess your choices, which can prevent quarrels over treatment options during a heightened emotional time. Let me tell a story about a client named Claire and her experience with the living will."
Claire was a medical receptionist who had to leave her job and provide round-the-clock care for her mother, who had a debilitating stroke and a heart attack. This caregiving included making decisions about hospital care, rehab options, and planning for long-term care. "Because her insurance was so limited in what it covered, I was doing everything at home for her from filling med boxes, scheduling and rescheduling medical appointments, speaking with doctors about her nutrition, and on and on," she stated. "Every waking moment seemed like I was making life-and-death decisions for her. Then, the things I was beginning to resent suddenly stopped. Her heart was failing, and she was now getting hospice services. It was like running full speed, being out of breath and wishing for a rest, and then running into a brick wall. The sudden stop gives you the rest you wanted, but hitting that wall hurt and hurt tremendously..."
Claire no longer needed to be her mom's proxy doctor; instead, she was required to be a daughter caring for a dying mother. "That was hard. Doing the planning and caring led to resentment, and now I felt guilty because all I could do was hold her hand and keep her comfortable, but I was committed to being the best daughter I could be now. When she passed, I knew she was finally at peace, and during this time, I realized that she had given me something extraordinary: having a living will."
"Mom's living will stated that she did not want life support or to be kept alive when any chance of survival without life support was impossible," Claire stated. "When hospice came in, and the doctor and nurse practitioners examined her, her final wishes were honored. Mom wanted it this way, and I understood, as sad as I was. What mom had given me at the end was the gift of a living will because without having that document, I know I would not have been able to let go, and the peace she wanted when the end came may not have happened."
"For Claire, not having a living will would have left her emotionally devastated, questioning herself about the right thing to do," said Attorney Connelly. "I have seen such scenarios tear families apart, families that were loving and strong. A living will is indeed a gift for those you love. It is, as I like to call it, the no-guilt document."
Most Frequently Asked Questions
We asked Attorney Connelly to consider the most asked questions he receives about this document and provide some answers for our readers.
Are living wills the same in all states?
"In some states, this document may be called a medical directive, advance healthcare directive, or healthcare proxy," said Attorney Connelly. "And it's not just the name for the document that is different, but the process and requirements for creating and executing this legal document may differ. I would suggest that if you spend considerable time in more than one state, check to ensure your living will also is valid there. Although most states accept living wills from another state if the document is valid in the state of its creation due to reciprocity laws, always check so you have peace of mind."
At what age should someone have a living will?
"If you are an older person, I'm sure you remember feeling invincible as a youth, but even young adults can benefit from this legal document," stated Attorney Connelly. "Given the world today, it's not uncommon to fall victim to unexpected circumstances regarding health. Younger people take more risks, making them high-risk candidates for sports and traffic accidents. Should such an accident occur, young people would also benefit from describing their approved treatment choices to avoid family difficulties when facing challenging decisions in emotionally charged situations.
I told my family what I wanted; isn't that good enough?
"A living will must be properly prepared to be legally effective," states Attorney Connelly. "Simply telling someone what you prefer or casually writing it on paper doesn't hold up. Know the laws of your state when outlining your preferences should you become permanently unconscious, terminally ill, or unable to communicate your choices and, of course, complete the appropriate documents."
Do family members decide to pull the plug?
"Unlike television dramas where a family member says, 'pull the plug,' and the doctors comply, there is much more required than that," says Attorney Connelly. "Imagine the abuse that could occur if it were that easy. In these cases, the attending physician must determine whether your physical state is permanently unconscious or terminally ill. This then requires a second medical opinion that must corroborate this determination. Your living will does not go into effect until you are in these doctor-determined states of incapacity. Conversations with your doctor about your living will while healthy can ensure your needs are met and that they will comply with your legally documented medical decisions."
What if I decide I want life support after making a living will?
"If you change your mind, it is permissible to rescind your initial living will and create an entirely new one, canceling the first," stated Attorney Connelly. "But just destroying the first copy will not suffice as it is a legal document that may have a connection to your other estate planning documents or other files. You must formally change or entirely revoke your existing living will to ensure your new wishes will be followed. Changing your living will is your decision; no one may do so without your consent."
What if I want all measures to stay alive? Can I be overruled?
"This is a common misconception again driven by television dramas where a long-lost relative arrives and battles with the family," stated Attorney Connelly. "A living will can keep you alive using external means in the most extreme circumstances if that is your wish. But many consider the quality of life in these situations rather than the desperate need to be kept clinically alive. However, if an individual prefers to remain alive under such conditions, your living will can identify preferences of pain control, comfort, and specific products and procedures you want."
"So where might such situations occur? In cases when younger people can make miraculous recoveries from a complex injury or illness, in such cases, the ability to change a living will is crucial. But remember, what you may want at age 25 will vastly differ from your preference at 75," concluded Attorney Connelly.
Is a healthcare agent a professional person or a family member?
"Naming a healthcare agent allows this person to make treatment decisions for you during incapacity," said Attorney Connelly. "The individual needs to be able to communicate with the doctors to make reasonable decisions. They should be able to cope well during stressful emergencies. Before appointing someone, discuss if they are willing to take on the responsibility and communicate your wishes as outlined in your living will"
Your agent is your choice and can be anyone with the following exceptions:
Your agent must be eighteen or older and capable of competent decision-making.
Your doctor or other medical team members cannot be your agent to avoid a conflict of interest.
Your agent may not be the individual who owns, manages, or works at the facility treating you.
I have a Healthcare Power of Attorney, so I don't need a living will, right?
According to Attorney Connelly, this specialized representative may make medical decisions if you become incapacitated. "A healthcare power of attorney is different than a living will, and it is wise to have both. Some states will combine the two into a single advance directive form. An experienced estate planning attorney can further explain the nuanced legal technicalities of these terms."
What if my family says they don't want to comply with my wishes?
"In the end, your doctors are not required to adhere to your living will; however, most will do so," said Attorney Connelly. "The best way to know where your doctor stands is to discuss your wishes in advance of some adverse health event. You can talk it out if your doctor takes issue with your perspective or choices. Remember, a doctor has medical knowledge and understands aspects of care you may not include in your living will. They may point out critical questions, clarify points, or spot something you overlooked. If you cannot agree, you may want to transfer your care to another doctor willing to honor your wishes."
"The living will is an essential tool in a comprehensive estate plan," stated Attorney Connelly. "If your preferences change over time, you can rescind or alter your document. An experienced estate planning attorney can help you understand a living will’s terminology and the requirements for your state and can create this legal document reflecting your wishes. A living will spell out your preferences for your doctor and family if you become incapacitated and can bring you peace of mind knowing you have proactively planned for such an event."