What is So Important About a Living Will?

Advanced Directives (also known as living wills or healthcare directives) are an important part of the estate planning process. Put very simply, an advanced directive is your instructions on what happens at the end of your life. With the current pandemic of the COVID-19 virus, many of us are turning our thoughts to our own mortality, in particularly, what happens at the end of our lives. This is where the advanced directive comes into play.

The advanced directive came onto many Americans’ radar with the infamous Terri Schiavo case, which garnered much public scrutiny during its 7-year legal battle, from 1998 to 2005.  In that case (for those who have never heard the story), there was prolonged debate over whether feeding tubes should be removed from Terri Schiavo, who was in a “persistent vegetative state” or irreversible coma. Since no advanced directive existed regarding end of life care and cessation of life support, Schiavo’s actual desires could not be determined, only her husband’s and parents’ interpretations of what they thought her wishes would be. Hence a court battle that lasted years resulted, as the Schiavo’s parents and husband could not agree on what action should be taken.   

So what exactly is an Advanced Directive, and what difference would it have made in the Schiavo case? 

An Advanced Directive gives specific directions to family members, the healthcare attorney-in-fact (person legally designated to make healthcare decisions) and physicians/caregivers about what the principal (person who made the directive) desires to happen in the event of an irreversible coma or lack of brain function. The principal has the right to give the orders regarding what his or hers desires are regarding ending life support. 

State law does dictate certain standards for the removal of life support, regardless of what an advance directive may say.  For example, state statutes require that a person may not be removed from life support unless that person is in an irreversible coma, or a persistent vegetative state (a vegetative state lasting longer than 4 weeks), requiring complete support.

However, the principal is allowed to make the directive narrower, as many people are uneasy with the statutory definition, on personal or religious grounds. The principal may choose to limit his terms to lack of brain function (there needs to be no brain activity in the brain or brain stem which is different from the persistent vegetative state); or he or she may say that they never wish to be taken off life support, under any circumstance. The important thing is that it is clear what the principal’s wishes are, without family members having to guess, under very stressful and emotional circumstances. 

One thing worth noting is to distinguish between a healthcare directive and a healthcare power of attorney. A healthcare directive contains explicit directions concerning the principal’s wishes, whereas a healthcare power of attorney does not contain specific directions, but rather delegates healthcare decisions to a trusted representative (called attorney-in-fact).

The Schiavo case should be a lesson to all of us. If she had a directive, then there would not have been a 7-year legal battle over what her wishes might have been. This is something we all want to spare our loved ones, particularly in the climate we find ourselves now with the COVI-19 virus.

The following two tabs change content below.

Eifert Law Firm

At Eifert Law Firm, we are committed to constantly honing our expertise and to continue learning and innovating to give you the best counsel in estate planning, probate, estate administration, and business law.
%d bloggers like this: