The Living Will - How a Tragic Event Made This Document Possible
by Don Drake, Connelly Law Offices, Ltd.
"In today's blog, I want to talk about living wills, their importance, and how this document came into existence," said certified elder law Attorney RJ Connelly III. "To begin with, a living will is a written record of the type of medical care you want in specific circumstances. It can be used to make treatment decisions if you cannot communicate your wishes because an illness or injury incapacitates you. I call it the 'no guilt' document because it serves as a valuable guide for your family, your doctors, and others if important medical decisions need to be made on your behalf without forcing them into making such an important decision at such an emotionally charged time."
This document usually becomes effective when a doctor certifies that the person is approaching the end of their life. It spells out the kind of medical care a person wants and does not want as they near the end of their life. For instance, it can specify that a person does not want to be resuscitated if their illness or injury reaches a certain stage. It can also list specific treatments that a person never wants to receive under any circumstances.
On the other hand, a living will can also indicate that a person wants to receive all available treatments that could keep them alive. This document serves as a guide for healthcare providers and loved ones to fulfill a person's wishes regarding their medical care during their final days.
"Creating a living will can be an effective way to ensure that your wishes are respected and followed in the event of a medical emergency," stated Attorney Connelly. "With a living will, you can be as clear and specific as you want about your preferences for medical care. You can even specify if you do not want to be kept alive using artificial hydration or a feeding tube or if you want to forego certain treatments that may only prolong the inevitable."
Before the mid-1970s, a living will was not a recognized legal document. It was only after a tragic case involving the Quinlan family in New Jersey that this law came to be. Attorney Connelly states that the story of Karen Ann Quinlan and her family played a pivotal role in developing the living will and its recognition as a legal document.
The Story of the Quinlan Family
In 1975, a twenty-one-year-old Karen Ann Quinlan spent a night with her friends consuming alcohol and valium. On top of this, she was on a crash diet, further weakening her body and lapsing into a coma. Her friends found her in this state and did CPR while waiting for the medical personnel to arrive. She was initially transported to Newton Memorial Hospital in Newton, New Jersey, before being transferred to St. Clare's Medical Center in Denville. After evaluating her condition, the doctors found that she was in a "persistent vegetative state," from which they deemed she could not recover.
"When we hear the term, 'persistent vegetative state', our thoughts are that she lay quietly in bed as if in a deep sleep," said Attorney Connelly. "Unfortunately for Karen Ann, this was the farthest thing from the reality of the situation. Her family reported that, at times, she thrashed about wildly, resisting any help from the medical personnel while blindly trying to rip off the wires and tubes that kept her alive. Her family was forced to witness this on top of the unspeakable tragedy that had already occurred."
Her parents, Julia and Joseph Quinlan were faced with the decision of how to move forward with the treatment of their daughter. "Not giving up on her, the family visited her four times a day, hoping for some sign that things were changing. Unfortunately, nothing did," said Attorney Connelly.
The Court Battle
The saga of Karen Ann quickly gained national attention as her family fought to remove her from the machines. Meanwhile, the hospital staff was apprehensive about the potential legal repercussions if they were to comply with the family's wishes. Given the non-existence of a document akin to a living will, the matter had to be resolved in the courts. All parties involved in this dispute looked to the legal system to make a final determination.
Attorney Connelly explained that as preparations were made for the legal battle, the family's life became an unbearable ordeal due to the presence of reporters and protesters. "These individuals stationed themselves outside the hospital, the court, and even the family's home, relentlessly bombarding them with the same questions daily. To add to the chaos, protesters from both sides of the argument joined in, making an already stressful situation even more overwhelming for the family," he said.
The case in question sparked a nationwide conversation around the definition of life and the right to die. While the Quinlan family's initial petition was dismissed in the Superior Court, their persistence eventually led to the case being brought before the New Jersey Supreme Court, which made several significant legal and medical precedents in its unanimous verdict on March 31, 1976.
"The court's decision established a novel interpretation of the right to privacy, stipulating that Karen Ann's interest in having her life support systems disconnected superseded the state's interest in preserving life," stated Attorney Connelly. "Furthermore, the court ruled that no criminal liability would arise from the removal of life support, as her passing would be deemed a natural occurrence."
The court appointed her father, Joseph, as her legal guardian, granting the family the authority to make critical medical decisions, including the decision to discontinue life support. The court believed society would accept Joseph's decision since it was deemed reasonable in similar circumstances. Following the ruling, Karen was removed from the respirator, but she breathed autonomously. Subsequently, she was relocated from the hospital to Morris View Nursing Home situated in Morristown, New Jersey, where she spent nine years receiving nutrition via a nasogastric tube. Karen Quinlan eventually succumbed to respiratory failure on June 11, 1985.
"The Quinlan case set a significant legal precedent for the medical profession," said Attorney Connelly. "The court urged doctors to create a set of guidelines that would allow relatives of terminally ill patients to make the difficult decision of withholding extraordinary measures to keep them alive. This led to the development of ethics committees in hospitals, long-term care facilities, and hospices to ensure that such decisions were made with utmost care and consideration. Further, the case paved the way for the creation of living wills, also called advance directives, which allow individuals to specify their medical preferences in case they become incapacitated and unable to make decisions for themselves."
Although the story could end there with the development of the living will, the family wanted more. In the face of their personal tragedy, Julia and Joe Quinlan chose to turn their pain into a powerful force for good. They were determined to ensure that terminally ill patients and their families received the care, respect, and dignity they deserved, and they opened the Karen Ann Quinlan Hospice in Newton, New Jersey.
"From the beginning, the Quinlans were committed to providing care to every patient who needed it, regardless of their ability to pay," said Attorney Connelly. "This pledge has remained a cornerstone of their mission, sustained by the continued fundraising efforts and the unwavering support of individuals, groups, and businesses who share their vision of hospice care."
Ten Facts About the Living Will
"This historic decision took place almost fifty years ago, and there are still many misconceptions about the document involved," stated Attorney Connelly. "To help alleviate some of these misunderstandings, here are ten crucial pieces of information everyone should know about the living will."
The Rules for Living Wills Vary by State
Depending on the state you reside in, a living will may be referred to by a different name, such as a medical directive, advance healthcare directive, or healthcare proxy. Additionally, the process and requirements for creating and executing this legal document may vary from state to state. If you spend time in multiple states, verifying that your living will is valid and recognized in each state is highly recommended. However, the good news is that most states have reciprocity agreements in place, meaning living wills from other states are typically recognized and accepted.
Living Wills are for Young People as Well
Participating in sports can often lead to unexpected health emergencies. In such cases, it is important to be well-prepared and aware of the approved treatment options. This is especially crucial for young people facing difficult decisions during stressful times. Prior knowledge of the available options can help alleviate family difficulties and ensure the individual receives the best possible care.
The Living Will is a Binding Legal Document
To ensure that your living will is legally effective, it is important to prepare it following the laws of your state correctly. Simply writing down your preferences on paper and keeping it in a drawer will not suffice in a court of law. Your living will should outline your wishes if you become permanently unconscious, terminally ill, or unable to communicate your choices. Following the legal requirements and guidelines ensures that your living will is enforceable and your wishes are respected.
Only a Doctor Can Define Incapacitation
Your living will only go into effect when you are in a state of permanent unconsciousness or terminal illness, as determined by your attending physician and corroborated by a second medical opinion. It is not permissible for anyone else to declare you incapable of making decisions. Therefore, it is essential to have conversations with your doctor while you are still healthy to ensure that your medical needs and preferences are documented and that your doctor is willing to comply with them. Doing so gives you peace of mind, knowing that your wishes will be respected even if you cannot decide for yourself.
The Living Will is a Dynamic Document
Under the law, you can modify or cancel your initial living will and create a new one that supersedes the first. However, it is not sufficient to simply destroy the first copy of your living will, as it is a legal document that may be linked to other important estate planning documents or files. Therefore, it is crucial that you formally modify or cancel your existing living will to ensure your new wishes are followed. Please note that changing your living will is entirely your decision and cannot be done without your consent.
Is a Living Will Different from an Advance Directive?
An advance directive is a comprehensive term used by the National Institute on Aging to refer to written and verbal instructions that detail your healthcare preferences. It serves as a roadmap for your healthcare providers to understand your medical treatment and care preferences in case you cannot communicate them. The different names for this document are subsets of an advance directive, and their specific titles may vary by state. Each state has processes and legal requirements for creating a valid advance directive.
Can You Direct Someone to "Pull the Plug"?
A living will is a legal document that outlines your preferences for medical treatment in case you become incapacitated or unable to communicate your wishes. It can keep you alive in extreme circumstances if that is your desire, but it also allows you to specify the quality of life you wish to maintain in such situations. For instance, you may wish to prioritize comfort and pain control over a desperate need to be clinically alive. Further, your living will can identify your preferences for specific medical products and procedures you want or do not want. This ensures that your medical care aligns with your values and beliefs, even when you cannot express them yourself. But consider this, younger people may recover from serious injuries or illnesses that could have been life-threatening. As a result, the ability to modify a living will is essential. Your preferences at the age of twenty-five may differ significantly from those you have when you are in your seventies. Therefore, you should regularly review and update your living will to reflect your current wishes and values.
Appointing a Healthcare Agent
Designating a healthcare agent is a crucial decision that enables a trusted person to make important healthcare choices on your behalf when you cannot do so. Your chosen agent should be able to communicate with your healthcare providers and make informed decisions based on your preferences. However, there are certain factors that you must take into account when selecting a healthcare agent. For instance, your chosen agent must be able to handle stressful situations and make quick decisions during emergencies. Therefore, discussing the responsibilities of being a healthcare agent with your selected individual is essential before appointing them. It is important to note that your healthcare agent should meet specific criteria, including being over eighteen and capable of making competent decisions. Additionally, your doctor or any medical team member cannot serve as your agent to prevent potential conflicts of interest. Similarly, the person who operates, manages, or owns the facility where you receive medical treatment cannot be appointed as your agent.
Durable Healthcare Power of Attorney
It's important to plan for unforeseen circumstances like incapacitation, especially regarding medical decisions. To ensure that your wishes are carried out, it's recommended to have both a healthcare power of attorney and a living will. Although some states may offer a combined advance directive form, it's essential to understand the differences between the two documents. If you're unsure about the legal technicalities, it's best to consult with an estate planning attorney who can guide you through the process and provide further clarification. Additionally, you can check your state's guidelines for these documents to ensure you have the correct information.
Will the Medical Personnel Comply with My Wishes?
It is not mandatory for medical practitioners to comply with your living will, which outlines your preferred medical treatment for an incapacitating illness or injury. However, most physicians will honor your wishes outlined in the living will. To ensure that your desires are respected, you should have a conversation with your doctor before any such health emergency arises. During this discussion, you can clarify your wishes and address any concerns or questions your doctor may have. Your doctor has expertise in medical treatment and may bring to light some critical considerations you may have overlooked. If you and your doctor do not see eye to eye, you can transfer your care to another physician willing to respect your preferences.
A Final Word
"When creating an estate plan, a living will is a crucial component that should not be overlooked," emphasized Attorney Connelly. "A living will is a legal document that outlines your medical preferences in the event of incapacitation. And remember, you can modify or revoke the document if your preferences change over time."
At Connelly Law, we understand the complexities of a living will and can assist you in creating a document that accurately reflects your wishes. We can also help you navigate the terminology and requirements of a living will. In the unfortunate event that you become incapacitated, a living will can provide your family and healthcare provider with guidance on how to proceed with your medical care.
By taking proactive steps to create a living will, you can have peace of mind knowing that your preferences are documented, and your loved ones will not have to make difficult decisions on your behalf.
Please note that the information provided in this blog is not intended to and should not be construed as legal, financial, or medical advice. The content, materials, and information presented in this blog are solely for general informational purposes and may not be the most up-to-date information available regarding legal, financial, or medical matters. This blog may also contain links to other third-party websites that are included for the convenience of the reader or user. Please note that Connelly Law Offices, Ltd. does not necessarily recommend or endorse the contents of such third-party sites. If you have any particular legal matters, financial concerns, or medical issues, we strongly advise you to consult your attorney, professional fiduciary advisor, or medical provider.