By Heather Agun, Edited by Becky Pearsall
*Created under the direct legal supervision of Stephen Waltar & Andrea Lee. See Disclaimer
Photos by Heather Agun
We can only provide accurate information about our own documents. If you are not a client, we cannot accurately inform you about what a different attorney or institution may include (or not) in a living will. Due to this, this blog post will only discuss the standard Living Will that our firm uses.
A Living Will can also be known as an Advanced Directive, Directive to Physicians, Medical Directive, or Health Care Declaration. If you are a client at our firm, yours is referred to as a Living Will or Directive to Physicians throughout your documents. In this article we’ll use the term “Living Will.” This document can use “legalese” that is not always easy to understand. To help, we’ve broken down some of the content below and answered our most common client questions for Living Wills in Washington State.
If you are currently contemplating your Living Will for an upcoming signing at our firm, we strongly recommend you read some of the information below. Even if you are familiar with Living Wills, please see “What are the options in a Living Will” section below.
Related: Your Life, Your Final Say
What is a Living Will?
If you were in a fatal accident today, would your family know your wishes for end-of-life care? If you went into a permanent coma, would you want to be kept on life support indefinitely? If you only had a few painful days to live but couldn’t speak for yourself, would your loved ones withdraw treatment to ease your suffering? A Living Will seeks to provide families with answers to these kinds of questions.
Keeping someone on life-sustaining care indefinitely can prolong suffering, create a serious financial burden, and be emotionally traumatic for loved ones. However, making the decision to withdraw care can create problems. Family members are not always equipped for the emotional burden of making such a decision. Sometimes, different family members may disagree on whether to continue providing care. If the person responsible for your healthcare decisions is also a beneficiary of your estate, it is even possible that discontinuing your treatment could be misinterpreted as having financial motives. This leads people to ask what they can do to protect their own healthcare wishes while alleviating the burden from their family.
A Living Will directs family and physicians to not artificially prolong the dying process in the case of a terminal or vegetative condition.
This is why Washington State passed the Natural Death Act, which allows for adults to create Living Wills. A Living Will directs family and physicians to not artificially prolong the dying process in the case of a terminal or vegetative condition.
At Legacy Estate Planning, we know that this topic can require some thought. We cannot give any medical advice on the choices within, and respect that this personal decision may take some time and research. This is why we send a draft of the Living Will before a client’s final signing appointment. If a client wants to alter the statements made in the Living Will, we will make whatever changes they desire (so long as they are in accordance with the law).
Related: Incapacity Planning Definitions
Is a Living Will the same as a “DNR”?
You may have heard of a Do Not Resuscitate order, or “DNR,” which is NOT the same thing as a Living Will. Washington State’s “DNR” is called a POLST, or Physician Orders for Life Sustaining Treatment. This form is bright green and it is intended for individuals with advanced life-limiting illnesses. Choices on a POLST include patient wishes for things such as emergency treatment, resuscitation, medical interventions, antibiotics, and artificial feedings. If someone is terminally ill and suffering, they may not want to be resuscitated from a heart attack. This is an example of a scenario when a patient might want to speak to their doctor about creating a POLST.
However, many young and healthy individuals create Living Wills. A Living Will does not prevent treatment in emergencies where your life can be saved. Instead, it seeks to prevent the prolonging of the dying process for someone who is already in it. It also prevents being kept alive indefinitely in an incurable coma.
What are the options in a Living Will?
At our firm, a standard Living Will first states your intention that you do not want your dying to be artificially prolonged. In order for a Living Will to take effect, you must be EITHER diagnosed with a terminal condition OR in a permanent unconscious condition (such as an irreversible coma). There also can be no reasonable hope of recovery and you must be unable to express your wishes yourself. Again, the aim is to avoid life-sustaining treatment that would only serve to artificially prolong the dying process.
Then we include one major choice regarding nutrition and hydration, and a space for other requests.
The choices regarding nutrition and hydration are:
- I DO NOT want to have artificially provided nutrition and hydration, or
- I DO want to have artificially provided nutrition and hydration, or
- I DO want to have artificially provided hydration, but I DO NOT want to have artificially provided nutrition.
This is not a choice that we can provide medical advice on, which is why we give our clients notice to contemplate or research which option is best for them. We also include a space for other requests that a client may have.
Will a Living Will prevent me from receiving pain medication?
No. The purpose of a Living Will is to avoid an artificially-prolonged death – not to prevent comfort and support for those suffering. Medical treatment to address discomfort is sometimes referred to as “palliative care.” This kind of care is not withheld per the terms of a Living Will.
Our Living Wills have several statements that address common client concerns. These statements are default but optional, and a client can request changes before the signing.
One of these statements specifically requests measures to relieve pain and suffering during the dying process. Per our default language, if the patient is in severe pain, they will be administered drugs to relieve it even if it shortens the dying process.
Does a Living Will prevent me from asking for life-sustaining treatment?
If you are able to speak for yourself, signing a Living Will does not prevent you from asking for life-sustaining treatment. For example, if you are diagnosed with terminal cancer, but can still communicate, you can override this document by asking for treatment. As long as you have capacity, your doctor should confirm that the Living Will is currently in line with your wishes. Living Wills can also be amended or revoked.
However, if you can NOT speak for yourself, signing a Living Will now will ensure that your wishes are followed and help prevent prolonged suffering for yourself and emotional and financial burdens for your loved ones.
What if I want to wait for someone to visit before I pass?
Some people want their life to be extended until certain conditions are met. A common reason is waiting until family from out of town can come to say goodbye. We recommend including these wishes in the “Other” section of the Living Will. We encourage clients to send this information to us before a signing so we can type it into the document.
What if I don’t want to sign a Living Will?
You DON’T need to sign a Living Will, but you DO need to be given the opportunity to sign one when you create an estate plan. Some people choose to forgo creating a Living Will, either to ensure that they are alive for as long as possible, or to give their family more flexibility to choose.
If you would rather leave the decision in the hands of a guardian or agent named in your Healthcare Power of Attorney: You may choose not to sign a Living Will and give them full discretion. If you prefer to leave the decision in the hands of someone else, you can absolutely choose not to create a Living Will.
However, you should be aware that this can put people in difficult positions. Some people are not emotionally prepared to decide to take someone off of life-sustaining treatment. Other times, a family may have a dispute about what treatment to provide. If your healthcare agent is also a beneficiary of your estate, it is even possible that their caring decision to discontinue treatment could be misconstrued as having personal financial motives. Deciding for yourself now can help prevent these possible feelings of guilt or animosity in the future among those you love.
If you are POSITIVE that you DO want your dying to be artificially prolonged: You may choose to forgo signing any Living Will. Make sure you are clear about your wishes with your healthcare agents. You can speak with your attorney about ideas to have your wishes honored.
What if someone tries to go against my living will?
If you have a concern about someone overriding or ignoring your living will, you can read the rest of this post. The following answers are a little bit more complex. Otherwise, the article ends here! We appreciate your feedback on our content, and if you would like to schedule an appointment you may do so through the Contact Us page or by calling our office.
The intention of creating a Healthcare Power of Attorney and Living Will is to protect your personal medical wishes. Understanding how doctors, the law, Healthcare Power of Attorney agents and Living Wills work together in a dispute can be complex, but we’ve broken it down as much as possible here. If you have concerns about someone overriding your living will, we encourage you to speak with an attorney for personal recommendations to protect your wishes.
- Healthcare Powers of Attorney and Living Wills
- What if a Healthcare Power of Attorney Agent has reservations about the Living Will?
- What does a hospital do when a family objects to a Living Will?
- One attorney’s experience
- Are there protections for healthcare facilities or personnel who refuse to honor living wills?
Healthcare Powers of Attorney and Living Wills
Our Healthcare Power of Attorney allows you to grant a trusted person full authority to make decisions regarding your health care. (The person who is granted the authority is often referred to as the ‘agent.’) It states that the agent should follow any healthcare wishes made known to them by the you, being guided primarily by preferences expressed in a Living Will or POLST where applicable. Our Healthcare Power of Attorney also says that the agent should take into account and honor the wishes you express in a Living Will (and has the power to interpret the meaning of a it). This helps protect your wishes.
What if a Healthcare Power of Attorney Agent has reservations about the Living Will?
In truth, some people have ethical or religious qualms about discontinuing life-sustaining care. If you have any doubts as to whether someone would fulfill your wishes, it is best to have a conversation with them. If you do not feel comfortable naming them as your Healthcare Power of Attorney, consider listing someone else or hiring a guardianship agency. It is generally unwise to choose an agent that you do not fully trust to act in your best interests. Sending your doctor and hospital copies of your Living Will can ensure its existence cannot be withheld (purposefully or otherwise) in an emergency. Other services like Docubank can also help healthcare workers have access to your documents in emergencies. We always offer to pay for the first year of a Docubank subscription for clients who are interested in the service.
A healthcare agent’s objection to a Living Will alone shouldn’t necessarily prevent healthcare personnel from following it. The doctor or hospital has to make several considerations when determining how to go forward in the face of objecting family members or agents.
What does a hospital do when family objects to a Living Will?
It is in the interest of hospitals and doctors to provide the best care they can for their patients. They also have to weigh medical ethics and potential for lawsuits in their care decisions. If a family insists that the existing Living Will is not truly in the interest of the patient, the hospital will need to consider how to go forward.
A Case Commentary in the AMA Journal of Ethics describes a patient whose Living Will stated he did not want to be resuscitated if dementia prevented him from recognizing his loved ones. While our Living Wills do not include such clauses, this case is an excellent example of the difficult decisions hospitals must make. The patient had dementia and his impaired mental state did prevent him from recognizing his friends and family. However, his family insisted that he thoroughly enjoyed his life at his nursing home despite this. They argued that the Living Will should not be implemented because they knew that with his present quality of life, he would wish to be resuscitated if he could speak for himself.
If a healthcare provider truly believes that the Living Will is not in the best interest of the patient, they may choose to allow the family to decide on the care of the patient. Laws regarding these matters vary state to state. This is why it is so important to name someone you trust unconditionally.
One attorney’s experience
Andrea Lee, an experienced estate planning attorney at our firm, has seen a shift in the institutions her clients work with. Years ago, if a family protested enough, a hospital might keep someone on life support despite a Living Will that directed otherwise. In recent years, she has seen the institutions her clients work with become increasingly firm about honoring Living Wills. Laws vary state by state regarding penalties for ignoring wishes expressed in Living Wills.
What if healthcare facilities or personnel refuse to honor Living Wills?
The law seeks to protect the wishes of the patient, which is why Living Wills exist. However, it also protects healthcare facilities and personnel from being forced to violate their moral, ethical, or religious beliefs. To protect those with reservations regarding discontinuing life-sustaining care, the law states that no healthcare practitioner can be required by law to withhold or withdraw life-sustaining treatment. However, if any facility or doctor has policies that would stop them from honoring a Living Will, they must immediately notify the patient or their representative. This way, a patient or their agent could seek treatment elsewhere to ensure their wishes are honored.
*This blog post was written under the supervision of attorneys Stephen M. Waltar and Andrea Lee, and all legal opinions shared are that of the attorneys. See our Disclaimer.