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Living Will

From lawbrain.com

A written document that allows a patient to give explicit instructions about medical treatment to be administered when the patient is terminally ill or permanently unconscious; also called an advance directive.

With improvements in modern medicine, the life of persons who are terminally ill or permanently unconscious can be prolonged. For increasing numbers of persons, the decision of whether to prolong life is being made in the form of a written document called a living will. The living will is one type of advance directive that may be used by a person before incapacitation to outline a full range of treatment preferences or, most often, to reject treatment.

A living will extends the principle of consent, whereby patients must agree to any medical intervention before doctors can proceed. It allows the patient to guide health care for the future when she may be too ill to make decisions concerning care. It can be revoked by the patient at any time. For many the living will preserves personal control and eases the decision-making burden of a family.

Forty-two states and the District of Columbia have living-will statutes that make a properly executed living will legally binding. In states that do not have a statute, living wills stand as a clear expression of the patient's wishes. Living-will statutes require that the person be legally competent to execute the will and that the will be witnessed by at least one disinterested person. Once a person who has a valid living will is terminally ill, the attending physician and a second physician must certify in writing that there is no reasonable expectation for improvement in the patient's condition and that death will occur as a result of the incurable disease, illness, or injury.

Upon this certification the doctor is obligated to follow the instructions contained in the living will. This typically means the patient does not want any medical procedures that serve only to prolong but not prevent the dying process. Therefore, if the patient is unable to breathe, the doctor is not required to connect the patient to a respirator. A patient may state in a living will that he does not want a feeding tube if unable to swallow food. Another common directive is to forbid resuscitation if the patient's heart stops beating.

Living wills have been criticized because they are usually limited to the withholding or withdrawing of "life-sustaining" procedures from a patient with a "terminal condition" or "terminal illness," and thus do not accurately reflect the broad legal right to refuse treatment. In addition, by their very nature, living wills reduce the patient's wishes to writing, and thus may be too rigid (or too vague) to adapt to changing interests or anticipate future circumstances.

To overcome these problems, many states have enacted statutes that permit a competent adult to designate a surrogate decision maker (also termed a health care proxy or agent) to make health care decisions for her in the event of incapacitation. The proxy's authority is usually not limited to decisions about life-sustaining treatment. A proxy can supplement a living will.

All fifty states have durable-power-of-attorney statutes that permit an individual (the principal) to designate another person (the attorney in fact) to perform specific tasks during any period of incapacity. Though most of these statutes do not expressly refer to medical care decisions, no court has ruled that they preclude the delegation of medical decision-making authority to the attorney in fact.

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