What is a Living Will?
A living will is a legally binding document that outlines what you want for your own care, thereby preventing some painful debates between family members concerned about your well-being.
It also designates an individual to make medical decisions for you when you cannot, a power that you can limit if you choose. Creating a living will is an essential component of creating an estate plan.
If you experience a serious illness, you may be unable to tell your doctors what medical treatments you want to receive or refuse. Similarly, as you reach end of life, many circumstances can limit your ability to communicate your health care preferences. It may be a period of weeks or months during which important choices are made on your behalf.
Forms of a Living Will
In California, a living will usually takes the form of an advance health care directive. According to the California Medical Association, a traditional living will focused only on refusal of life-sustaining treatment in the event of incapacity. The living will was often combined with a power of attorney that authorized a specific individual to make health care decisions.
However, the advance health care directive addresses life-sustaining treatment in any situation. It includes the appointment of an agent, also known as a power of attorney for health care, to make decisions. Individuals can include a range of issues in the directive, such as preferences for palliative and hospice care.
If you made a valid form of a living will prior to July 1, 2000, such as a Natural Death Act Declaration, a Durable Power of Attorney for Health Care or Directive to Physicians, these remain in effect until revoked.
When a Living Will is Used
The authority of a health care agent under an advance care directive comes into effect when your primary physician determines you are unable to make your own medical decisions. You can also choose to have that authority come into effect immediately, an option that should be carefully thought through.
Contents of a Living Will
In addition to naming your health care agent, the advance care directive allows you to name your primary physician, although the latter is optional. Individuals may also direct use of organs after death, such as for transplant or research purposes.
Some individuals choose to refer to specific medical procedures in their living will. The Mayo Clinic recommends thinking about such things as:
- CPR and other forms of resuscitation;
- Being on a ventilator;
- Tube feeding;
- Antibiotic or antiviral medications;
- Pain management and other forms of comfort care.
While you may choose to refuse these procedures completely, you may also want to simply place limits on their use. For example, you may agree to being on a ventilator for a specific period of time.
Since it may be difficult to make these choices without more information about what the procedures entail, it is a good idea to discuss the issue with your physician before finalizing your directive.
Once preferences are established in a living will, a doctor can create a POLST (Physician Orders for Life-Sustaining Treatment). Most appropriate for those with serious illness or nearing end of life, a POLST turns the details of a care directive into treatment orders for medical teams.
Creating a Living Will
The state of California has an Advance Health Care Directive Form for individuals to create a living will. However, it is not necessary to use this form to create a valid directive. Since some specific issues must be addressed in a directive in order for it to be upheld by a court, it is a good idea to draft the document with a lawyer’s assistance.
You and two witnesses must sign your directive in the presence of a notary or lawyer. The witnesses are, in part, certifying that they not only saw you sign the directive, but that you were not under duress while doing so and were of sound mind. Witnesses may not include the health agent named in your living will, nor may they include members of your health care team. A special witness is also required for patients in care facilities.
Apart from the legal requirements, it is good practice to discuss your care directive with family members. Ultimately, your end-of-life preferences are your own, but knowing them in advance can help loved ones deal with the situation with less emotion and conflict.
Choosing a Health Care Agent
In California, there are some restrictions on whom you can name your health care agent. In general, it cannot be your doctor, a member of your care team, or an employee at a care facility where you reside.
You should choose someone whom you trust, is comfortable discussing medical issues, and is well-informed about your wishes. Since agents often have to be a patient advocate in court or in discussion with family members and doctors, they should be able to handle conflict appropriately. For your own peace of mind, confirm your agent supports your preferences and is willing to enforce them.
You should review your living will periodically to make sure it still reflects your wishes. If you remarry or experience a new medical diagnosis, you may want to consider revising the document. At any time before it is invoked, you can update your care directive, including changing your health care agent.
A living will, like all aspects of health care, is of great importance to you and your family members. It helps to ensure you not only receive the care you want, but that loved ones experience the least possible amount of stress during an already difficult time. To learn how to create an advance care directive that’s right for you, speak in confidence with an estate planning lawyer.