Living Will

Living Will in the United States

Plain-English Law

Living Will as defined by Nolo’s Encyclopedia of Everyday Law (in page 437-455): “A legal document that allows you to set out written wishes for health care. The document takes effect only if you are unable to make decisions for yourself.”

What is a Living Will?

A living will allows people to document their wishes concerning medical treatments at the end of life. It is, therefore, a legal document that some people use to make known their wishes regarding life prolonging medical care.
The law recognizes the right of a competent adult to make a living will instructing his or her physician to provide, withhold, or withdraw life-prolonging treatments.

A living will, despite its name (“will”), it is a different “animal” of the wills that many people use to leave assets at their death. A living will is also called a directive to physicians or advance directive (see also below).

When dealing with estate planning, it is recommended don’t overlook a living will. This document can give invaluable guidance to family members and healthcare professionals, because without a such document, family members and physicians are left to guess what a seriously ill person would prefer (wish) in terms of medical treatment. Family members may end up in painful disputes, which occasionally may finish in legal disputes.

Details

How to Create a Living Will

The requirements for a living will vary by U.S. state (and country, such as the case of the English legal system). It is common, therefore, the use of an attorney to prepare an advance directive or living will. In order to complete an Advance Health Care Directive the person must identify the types of treatments he or she does and does not want at the end of his or her life (living will).

How Living Wills Work

Many U.S. states have forms for living wills, allowing the state´s residents to establish their documented wishes in the amount of detail as they’d like (with some minimum requirements). For example, it’s a common practice to direct that “palliative care”—that is, care to decrease pain and suffering—always be administered, but that certain “extraordinary measures,” like cardiopulmonary resuscitation (CPR) not be used in certain circumstances.

To be valid, a directive to physicians should comply with the state requirements in relation to notarization or witnesses. A directive to physicians, like in the case of a will, can be revoked at any time. The document can take effect either as soon as it’s signed, or either when it’s determined that the person who signed the document can no longer communicate his or her wishes about medical treatment. Even in the first case, physicians usually prefer relying on personal communication, not a document, as long as possible (the capacity to communicate the wishes about medical care or treatment).

Durable Powers of Attorney (DPOA) for Healthcare

Living wills are often used with a DPOA for healthcare. In some U.S. states, in fact, the two documents are combined into one. A durable power of attorney appoints someone (for example, a member of the family) to carry out the wishes about end-of-life medical treatment contained in an advance directive. The person named in the DPOA for healthcare is called, usually, the “agent,” “healthcare proxy,” or “attorney-in-fact” of the person who signes the DPOA.

Living Wills After Death

Any authority granted by a living will ends when the person who signs the document dies, with the single exception that some medical directives or powers of attorney give healthcare agents the power to make decisions about organ donation or autopsy. But because those decisions must be made very soon after death, this authority is, in fact, not long-lasting.

Health Care

Directives (Health Care Powers of Attorney and Living Wills)

An advance directive – also called a health care directive, medical directive or physician’s directive – is, as mentioned above, a legal document that describes the interested person wishes for life prolonging care in the event the interested person are injured, become seriously ill, or otherwise become unable to express the interested person own wishes.

People use a healthcare directive to accomplish the following actions:

  • To name a person (as an “attorney”) who will make health care decisions for the interested person when he or she cannot, and
  • To state the interested person wishes for health care, organ donation and other final arrangements.

In some states, these are two separate documents – the power of attorney for health care and the living will. Other states, as stated above, combine these documents into one form. The names of these forms vary across the states of the United States, but every U.S. state allows the interested person to do these two actions.

Advance Directives

The terms “living will”, “health care directive”, and “advance directive”, all refer to the legal document that lets people state their wishes for end-of-life medical care. The term ‘advance directive’, therefore, refers to an oral and written instructions about the future medical treatment in the event a person is unable to express those treatment instructions.

An advance directive can be used to name a health care agent. Advance directives can be detailed and long; other are very basic.

Background: Estate Planning Basics

An estate plan helps protects the interested person´s family and his or her asset when this interested person die or become incapacitated. Planning the interested person´s estate generally includes the following:

deciding who will get the deceased person´s assests and rights when the deceased person dies
naming an executor to wrap up the deceased person affairs
naming guardians for the deceased person´s children and the assets
avoiding probate, or
preparing for a time when the interested person may not be able to make his or her own financial or medical decisions (see advance directive above).

To accomplish these goals, the interested person may need a will, living trust, a living will, and powers of attorney. The interested person probably won’t need all of these documents, depending in a number of factors, such the quality and quantity of assets, familiar circumstances, jurisdiction and other.

Basic Meaning of Living Will

Living Will means: a document which governs the withholding or withdrawal of life-sustaining treatment from an individual in the event of an incurable or irreversible condition that will cause death within a relatively short time, and when such person is no longer able to make decisions regarding his/her medical treatment.

Living Will: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Living Will. This part provides references, in relation to Living Will, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Living Will by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Living Will and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Living Will or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Living Will and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Living Will. Finding these decisions can be challenging. In many cases, researchers about Living Will should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Living Will when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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