Do I Really Need a Living Will?
More than any other legal document, clients are most often concerned or hesitant about signing an advance directive or “living will.” The reasons behind the hesitancy are varied but range from a thought that physicians will not honor the terms of a living will to fears that having a living will results in a failure to treat or an early death. None of these are true and having a living will is an important part of estate planning.
An advanced directive or living will (used interchangeably herein) is a legal document in which an individual’s preferences for care and treatment are outlined. The document provides guidance to medical providers and families about care and treatment for the individual should the individual be unable to communicate for themselves. Often this includes specific direction about care and treatment at the end of an individual’s life. It is critical to remember that a living will is not a direction to not treat the patient. Instead, it is a direction about what treatment the patient may want or not want. For example, an individual may not want life sustaining treatment, but they would want pain medication and palliative care.
Living wills are legally recognized documents but they are not binding. Therefore, a physician may refuse to comply with the directions contained within a living will. However, state laws provide physicians immunity from liability if they follow the directions contained within a validly executed living will. Practically speaking, most treating physicians would consult with family members and the agent appointed under a health care power of attorney before making decisions regarding withdrawing life sustaining treatment, however, all parties involved can look to a living will for guidance.
It is critical to remember that the medical system in America is one of treatment and cure and it is not in the nature of a healthcare provider to not treat a patient but is frequently more likely to over treat in hopes of a good outcome, even when one is not likely. There are several cases which are considered to be landmark cases that illustrate why having a living will is important, even for someone relatively young and healthy.
Karen Ann Quinlan was born in 1954. At the age of 21 she lost consciousness after being on a crash diet, drinking, and taking a valium at a party. Her friends put her to bed but found her unconscious and not breathing shortly after. She was resuscitated and taken to a hospital in Newton, New Jersey. It was determined that she had irreversible brain damage which left her in a persistent vegetative state. Her parents requested that the ventilator, which was keeping her physically alive, be removed because she appeared to be in pain. The hospital refused to do so. Almost 5 months after falling unconscious, her parents filed suit to have the ventilator removed. They lost the initial case with the court stating that removing the ventilator was a medical decision (instead of a legal one) and that removing the ventilator would violate the New Jersey homicide statute. Eventually her parents won on appeal.
More recently, Terri Schiavo was born in 1963. At the age of 26 she went into cardiac arrest and suffered massive brain damage as a result. Her diagnosis was changed to a persistent vegetative state two and a half months after the incident. For two years physicians attempted physical, occupation, speech, and other experimental therapies to attempt to return her to a state of awareness. Eventually, her husband petitioned to have her feeding tube removed. This action was opposed by her parents. The legal battle between Terri’s husband and parents lasted for years and involved both state and federal courts. Eventually her husband was allowed to have her feeding tube removed and she died on March 31, 2005 – almost 15 years after she suffered cardiac arrest.
Both the Quinlan case and the Schiavo case are heartbreaking for all parties involved. The Quinlan case came before New Jersey law permitted an individual to have a living will, thus no guidance existed about Karen’s wishes or feelings about end-of-life treatment. Terri Schiavo did not have a living will so no guidance existed about Terri’s wishes which ultimately led to a long legal battle. Unfortunately, cases like these still exist although with less media coverage and fanfare. It is cases like these that illustrate how an advance directive could provide family members, health care providers, attorneys, and judges with an idea of what treatment an individual would want should something unexpected and catastrophic occur.
ASK THE ATTORNEY
Client: What are my options to help pay for assisted living facility or nursing home care in the future?
Attorney: There are five ways to pay for long-term care
- Private Pay
- Long-term Care Insurance
- Veterans Administration
Hook Law Center: Hi Dan, I have noticed that during really hot days, my neighbors will walk their dogs either super early in the morning or late in the evening, why is that?
Dan: I have noticed this too! Even my parents will walk me before they leave for work around 6:00 AM… don’t they realize I like to get my sleep? From what I have been told, it is because of the temperature of the sidewalks and pavement. I learned recently that the ground actually heats up faster and gets even hotter than the air temperature. An article posted by the Spruce Pets included a diagram showing that if the air temperature is 86 degrees, the pavement is running around 135 degrees. Could you imagine walking barefoot on that? I guess I will try not to be so grumpy in the mornings for my walk now that I know it is really for my safety.