If you are over 18, and have no other estate plan, at the very least, you must have a living will or healthcare directive (also called advance directive). Even if you do not have children, even if you do not own a house, even if you have not saved a dime, you are legally responsible for your own life and health.
Living wills surged into American consciousness with the infamous Terri Schiavo case from 1998 to 2005. In that case, there was prolonged debate over whether feeding tubes should be removed from Terri Schiavo, who was in a persistent vegetative state. Ms. Schiavo’s husband wanted to suspend her feeding tube, and her parents contested that decision. In the absence of a living will to determine Terri’s own wishes, the argument waged on for 7 years. Since there was no advance directive 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.
So what exactly is an living will, and what difference would it have made in the Schiavo case?
A living will gives specific directions to family members, the attorney-in-fact (the person legally designated to make healthcare decisions) and physicians/caregivers about what the principal (person making the living will) desires to happen in the event of an irreversible coma or lack of brain function. The principal has the right to indicate what his or hers desires are regarding ending life support.
It is worth noting that a living will does not allow for removing life support in the event of any coma. State law in Idaho and Washington dictates 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 may choose to make the standard stricter than the state laws, as many people are uneasy with the statutory definition, on personal or religious grounds. The principal may choose to limit his terms to a complete lack of brain function (life support may not be removed unless there is no activity in the brain or brain stem, whereas in a persistent vegetative state they may still be brain activity); or he or she may say that they never wish to be taken off life support, under any circumstance.
One thing worth noting is to distinguish between a living will and a healthcare power of attorney. Both are useful and important documents for protecting you and the end of life care you receive. However, while a healthcare power of attorney delegates healthcare decisions to a trusted attorney-in-fact, and gives that person the authority to make judgment calls, a living will contains explicit directions concerning the principal’s wishes.
Many people point out that often people’s wishes when they are critically ill or dying are different than when they are stoically writing a living will in perfect health. That is true, but it always helps bring more clarity to have talked about these decisions before a crisis. However, this is also a valid point, and for that reason, I recommend having both a living will and a healthcare power of attorney. That way you can draw the fence around the issues that matter most to you, but if there are any issues concerning which you feel that you may change your mind, you can leave those to the wisdom of a trusted attorney-in-fact.
I always recommend as much correspondence as possible with your attorney-in-fact. If you have thoughts or concerns about various medical treatments or ethical issues you are concerned about with regarding healthcare, the more you communicate with your attorney in fact before a crisis arises, the better that attorney in fact will be able to discern and implement your desires.
Conversations about medical catastrophe and end of life care are never easy or pleasant, but the Schiavo case can be a lesson for all of us. If she had had a directive, then there would not have been a 7-year legal battle over what her wishes might have been, which is something we all want to spare our loved ones. Writing an advance directive gives your family the gifts of both clarity and confidence, and helps ease additional mental and emotional burdens in an already difficult time.
Eifert Law Firm
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