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How to Create a Living Will and Why it’s Important

What Is A Living Will?

A living will (sometimes called an Advanced Directive, Healthcare Directive, Directive to Physicians, or DNR Order) is a legal document that any person with the capacity can execute to inform physicians, first responders, or even family members of their wishes and preferences as relating to emergency or end-of-life medical care in the event that person is not able to make or communicate those wishes.

Is It Important For Me To Have A Living Will?

No one likes to think about getting older, getting sick, or even becoming incapacitated.  However, accidents and unforeseen events happen every single day and all it takes is one instance for you or a loved one to be placed in a situation wherein you might not be able to make your own care decisions.  

Most states have statutes or ordinances in place which address the preference of how these care decisions are to be made with regard to which individual gets to make the decisions (i.e. a spouse, adult child, or parent) but without a signed and witnessed document, the care decisions made by the statutorily-preferred individual will determine the care you receive, regardless of whether you would have made that same choice for your own care.

Here’s a quick example:  Jane Doe suffers a sudden and traumatic medical episode that renders her mentally and physically incapacitated.  Jane’s spouse, who is legally entitled under state law to make health care decisions for Jane, requests that the life support in place to keep Jane legally alive be removed.

Jane’s family, who does not agree with Jane’s spouse’s decision, fights Jane’s spouse in a case that is appealed to different state and federal courts fourteen times and only ends after millions of dollars in legal fees are spent and the United States Supreme Court declines to accept a hearing on the case.  

This is exactly what happened to Terri Schiavo in the early 2000s. Granted, the Schiavo case was an extreme circumstance but families across the country face these kinds of choices and decisions every day because of a lack of proper advanced planning by their loved ones.  

Creating a living will not only will provide you with peace of mind, it will give assurance to your loved ones that—should the time ever come—they only need to make sure your wishes are followed.

How Do I Create a Living Will?

Although it is a legal document, a living will does not have to be created by a lawyer.  It can be drafted by any adult person, regardless of legal expertise or access to legal assistance.  

However, to ensure that your living will conforms with the requirements of state law, it is suggested you at least consult with a wills attorney prior or allow an attorney to create a living will for you.

Your living will can contain as many or as few wishes regarding your care that you prefer, however, all living wills should at least contain your preferences for three separate areas:

  1.       Life-Prolonging Care – Things like blood transfusions, dialysis, ventilators, emergency surgeries.  The people who are making your choices without a living will could have very different feelings about the measures used to prolong your life in the event you become incapacitated.  A living will helps to memorialize your wishes to avoid confusion.
  2.       Artificial Nutrition/Hydration – A body receiving artificial food or water through intravenous means, feeding tube, or GI tract can remain alive for a prolonged period of time, even well after brain death has occurred in the patient.  If your desire is to be allowed to pass naturally, you will want to make sure to tacitly refuse the administration of artificial nutrition or hydration.  Usually you will also have to sign an acknowledgment that you understand that the withholding of artificial nutrition or hydration will eventually bring about death.
  3.       Palliative Care – While nobody wants to die, everyone wants to be comfortable or pain-free when the moment comes.  Palliative care is the humane administration of drugs, medicine, or other substances to ensure your comfort during your final days.

If forming your own living will remember to consult local laws and statutes to determine the number of witnesses needed to effectuate the document or if a notary public is required.

Okay, I Have a Living Will, What Next?

Make sure you have a copy of your living will available at all times.  If you have other estate planning documents, such as health care powers of attorney, a trust, or last will and testament, make sure to give a copy of the living will to the person(s) named in those documents to make your other health care or financial decisions.  

If you live in a small town, have a primary care physician, or only visit certain hospitals, make sure you have a copy of your living will on file there.

Other steps may include keeping a copy on file with your health insurer or in a local, state, or federal living will registry.  If you use an attorney to draft the living will, consider keeping a business card on your person as a point of contact.  

The attorney’s office will likely retain—if not a copy—the original document in the event that they ever need to produce the same.

If you have any additional questions about living wills, or to set up a consultation for your living will, feel free to contact Grant Morris Dodds.