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Living Wills and Advance Directives Explained

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: March 22, 2018

A living will can best be described as a healthcare directive and is otherwise known as an advanced directive. It is a document, largely drafted and signed by the person it pertains to, detailing exactly what that person’s will is regarding their medical care under specific circumstances, particularly those within which said person is unable […]

A living will can best be described as a healthcare directive and is otherwise known as an advanced directive. It is a document, largely drafted and signed by the person it pertains to, detailing exactly what that person’s will is regarding their medical care under specific circumstances, particularly those within which said person is unable to directly communicate their wishes.

Much like a Do-Not-Resuscitate (DNR) document, which is signed by individuals who do not wish to be revived if their heart were to fail, a living will is an expanded legal tool that allows you to comprehensively address certain issues that may arise as a result of specific illnesses or healthcare emergencies.

However, there are clear differences between the two. A living will is a reference for healthcare professionals, a structured document providing guidance for several end-of-life medical questions and dilemmas.

There are several ways to draft and prepare such a document, and the exact requirements differ from state-to-state, as with most estate planning tools. A do-not-resuscitate order is written on yellow paper and signed by both the individual and a licensed physician.

A living will is meant to take precedent over the wishes of others, including the friends and family of the patient, just like a DNR. Because of the highly delicate nature of the matter, it is important to be precise and clear in the creation of your living will, to leave no room for confusion in critical moments later.


Crafting a Living Will

A living will, like any legal document, is best drafted alongside a professional. Using online templates may give you a better idea of the full scope of the document and what it entails – but there is no substitute to having an attorney help you draft a living will that best describes your wishes given specific circumstances.

A living will typically entails anything you wish it to entail – as long as it is a valid medical procedure, you can detail whether you would want it to be performed under specific circumstances given your incapacitation. Examples of some circumstances typically handled by a living will include:

      • Provision or withdrawal of artificial nutrition and hydration, or oxygen (life support).
      • Cardiopulmonary resuscitation.
      • Authorizing an autopsy.
      • Anatomical gifts/organ donation.
      • Approve/disapprove of certain diagnostic tests, procedures, programs, or treatments.

As with any document, it must be signed and properly filed/notarized to be a valid living will in the case of a serious medical emergency. Even then, there may be incredibly rare cases when doctors will disapprove or disregard a living will, out of religious or ethical reasons. This is rare for the simple reason that doing so gives you the right to sue them for damages thereafter.

There are exceptions, specifically if you are pregnant. Your doctor may ignore your wishes if it means keeping the fetus alive. You can specify what your wishes are within your living will, but they may still be overridden if you are in the second or third trimester.

Your wishes are respected, even if they go against the conscience or policy of a medical institution/hospital/medical professional. However, if there is a conflict between the medical professional and your directives, it is typical to ask your healthcare agent to clarify or make the decision if you are incapacitated.

Your healthcare agent is a person designated to make end-of-life decisions for you if the living will does not cover them, or if there is a conflict. As per California law, they can be anyone within your family or close social circle, so long as they are not:

      • Your healthcare provider/professional.
      • Anyone working for your doctor, or anyone working with them, unless they are your spouse/partner or related by law (blood, adoption, marriage).
      • Any employee in a hospice center/care facility for the elderly, unless they are your spouse/partner or related by law.

They must be someone close to you, who would not in any way profit from any treatment administered to you under any circumstances.


Living Wills vs. Last Will and Testament

While both documents are a form of will, this similarity only matters insofar that they both express your will as an individual and give you power and freedom to choose how your body and property is to be treated if you are incapacitated.

A last will and testament determines what is done with your property after you die, within certain restrictions and limitations. It must also be legitimized and probed in probate court. A living will, on the other hand, is much less complicated to legitimize and only provides guidance and restrictions on what to do with your body when you are incapacitated.


When to Consider a Living Will

Most estate planning tools help an individual decide how to best prepare their wealth and finances for inheritance, so that when they pass away, their family will be spared from additional stress and complication, or unnecessary loss of wealth. These tools are different methods to ensure minimal damage to the eventual estate.

A living will is different in that it is best drafted later in life. Estate planning tools can be incredibly handy for tax purposes, financial security looking into the future, and more. A living trust or a last will can be amended and redone several times in life, as your wealth increases and your properties expand.

A living will is also amendable, but most people in good health do not need to bother creating one. Many of the questions within a living will are hard to answer even within a more personal and relevant context, such as an impeding surgery or a terminal illness.

A living will is best drafted and carefully considered either as part of a complete estate plan, before a major or invasive medical procedure, in advancing age, or in the case of terminal illness. That being said, there are no legal limitations for when to create or update your living will. Be sure to discuss it with a legal professional and your physician/doctor before going forward.


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