It may be surprising how often people confuse a living will with a last will and testament or a living trust. Living wills are often used as a type of healthcare directive. More specifically, a living will is used to provide specific instructions regarding the type of medical treatment you agree to receive or want to refuse if you should ever become critically ill. Living wills include Do Not Resuscitate orders or DNRs. Here is what you should know about using a living will as a healthcare directive.
How a living will works
A living will is essentially a set or written instructions that lets your family and your health care providers to know which course of medical treatment, if any, you want to be followed in the event you can no longer communicate those decisions yourself. Do Not Resuscitate orders are not the only types of living wills. You can also create other types of Advanced Directives which indicate that you do not want to remain on life support in the event you are “permanently unconscious” or brain dead.
Three types of living wills
There are three kinds of living wills. The first type provides instructions to your healthcare provider about the medical treatment you would want to be provided. The second type provides “proxy” power to an individual you trust so that person can make medical decisions for you without specific instructions. The third type can do both.
A healthcare directive protects your right to make decisions about medical care
Under the law, everyone has the right to make their own decisions regarding their medical care. This is true at any point in your life, including when your life is ending. It is also true even if you are no longer able to express your desires regarding medical care. If that happens, you can use your living will to spell out your instructions for you. A living will also serves the very important purpose of lifting the weight and alleviating the stress your family will surely feel at such an emotional time.
The terms of your healthcare directive need to be specific
Contrary to what many people believe, a living will that includes vague language is not as effective as one that is more specific. Instead, your instructions should be a detailed as possible so that there will be no confusion. Unclear language leads to confusion and ultimately conflicting interpretations. A common example is when people say “no heroic measures,” they many intend that to mean no artificial nutrition and hydration. Yet, their physicians may not define heroic measures the same way.
Determining when your medical condition invokes your healthcare directive
Another common source of confusion can involve the interpretation of your medical condition and whether it invokes the terms of the living will. Basically, a living will only becomes effective when you are diagnosed with a terminal illness or you have become incapacitated in some way. Health care professionals may dispute whether your medical condition falls into either of these categories. But, without the proper diagnosis you may continue to receive medical care against your wishes.
Mental incapacity can cause a living will to go into effect
There are a number of medical conditions, such as Alzheimer’s disease, psychosis, and dementia, which are recognized as resulting in diminished mental capacity. Age and senility are also common culprits, making individuals less able to make responsible decisions for themselves. However, a determination of incapacity should never be based solely on a diagnosis. Not all medical conditions presumptively result in a lack of mental capacity.
Having a living will does not mean you will be denied all healthcare
Just because you have a living will, that does not mean you no longer have the right to medical care. In other words, you will not be abandoned by your health care providers simply because you have a living will. Instead, a living will only pertains to the measures your doctor may determine are useless. But you do not have to worry because your doctors and nurses will continue attending to your needs and comfort for as long as necessary.
What is necessary to make a valid healthcare directive?
Each state has its own laws governing living wills. Typically, a living will needs to be written and signed by you. In most cases, it must be witnessed by two other adults. Most states require that you be at least 18 years of age and of sound mind when you draft and execute the living will.
If you have questions regarding a living will, healthcare directive, or any other estate planning needs, please contact the Schomer Law Group for a consultation, either online or by calling us at (310) 337-7696.
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