All states and the District of Columbia accept living wills as a form of advance healthcare directive. However, the state or local laws decide if a living will’s specific aspects can be honored. Also, a living will isn’t the same as a healthcare proxy or durable power of attorney.
A living will is a personal, medical, or advance healthcare directive. The legal document provides specific instructions for palliative care or treatments for terminal illnesses and personal, medical, and procedural preferences for when a person can’t communicate.
A living will is executable only when the person is incapacitated or debilitated and can’t speak, write, or express in any way how they wish to be cared for and treated.
Also, living wills aren’t always binding on doctors and healthcare professionals. So, does a living will work?
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What is a Living Will?
A living will is an individual’s legally binding declaration stating their wishes in favor or against specific medical procedures, treatments for incurable diseases, the scope of end-of-life care, healthcare-related finances, and social, cultural, or religious customs.
As a free individual, you may choose certain treatments and opt out of some medical procedures. For instance, you may be against intubation or end-of-life support using a ventilator if doctors conclude an irreversible coma.
Your living will can state this preference. You may be against significant surgical procedures, such as amputation or organ transplant. Your living will can include such information, and you may provide specific details about how doctors or healthcare professionals and your dear ones should manage your condition.
You may decide on a concise or extensive living will based on your preferences and prevailing medical history. Also, living wills can include details about religious rituals or other personal preferences that may be in conflict with standard and rare medical procedures.
A living will is different from an estate plan or last will and testament. Living wills aren’t legally binding after the principal’s death. However, living wills can cover healthcare-related expenses, preferences for particular doctors or medical facilities, and power of attorney, proxy, or agent.
How Does a Living Will Work?
A living will must be available to the family, designated healthcare proxy or durable power of attorney, and doctors and caregivers for everyone to ensure its execution.
You may file your living will with the United States Advance Care Plan Registry. Living wills are subject to state laws. All states have mandated forms for advanced directives like a living will.
A state may honor a living will that is created, notarized, and registered per the laws of another. However, local laws and other variables may prevent that from happening.
You can download the living will form for your state from this USACPR list. The state laws aside, a living will should also adhere to the general ethics that bind doctors and healthcare professionals to various protocols.
Your living will can’t wish for something unethical. All living wills must have witnesses, and the document should be notarized. Most states require at least two witnesses or notary public, and many warrant both.
Idaho and New Mexico don’t require witnesses, but it is safer to have them in case the living will is challenged. Alaska doesn’t require a witness for a living will but warrants two if a healthcare proxy is appointed.
Most states don’t accept living wills if the principal is pregnant. States can exercise their laws that are relevant for specific facets of a living will. Thus, you should avoid any conflict.
The availability and awareness of a living will are quintessential as it works or is executable only when the principal can’t communicate in any way. Hence, the principal must disclose the existence of their living will to everyone who may have a role in their treatments and care.
How to Create a Living Will?
You may hire an attorney or draft a living will yourself after referring to the state form and consulting with your doctor. Also, you can use available software to create your living will, such as Trust & Will.
The most critical aspect of living wills is tenability. Your expressed wishes or preferences will be subjected to reasonability, ethics, and local laws. Doctors or healthcare professionals may recuse themselves if they can’t honor your wishes.
Such situations can get complicated. Ideally, you must speak with your doctor to understand what is and isn’t doable and then decide what you want and don’t.
A doctor is ethically and professionally bound to act in specific ways to save you or improve your health. Your living will can but shouldn’t create any conflicts.
Living Will vs. Healthcare Proxy vs. Durable Power of Attorney
A living will doesn’t need a healthcare proxy or durable power of attorney unless your state laws necessitate it. Your expressed desires should be honored irrespective of whether there’s someone to ensure the will’s execution or not.
However, a healthcare proxy is a practical option. A healthcare proxy can be anyone who is entrusted with the responsibility to execute your living will. The proxy may be your family member, a friend, an attorney, or someone you trust.
Doctors cannot be healthcare proxies if there’s a conflict of interest. The only function of a healthcare proxy is to execute the principal’s wishes, bound by the living will.
Healthcare proxies can’t make financial or other decisions that are beyond the living will’s scope. However, loopholes may enable healthcare proxies to make medical & other decisions.
For instance, a living will may state that a healthcare proxy shall decide on behalf of the principal if the latter is incapable of communicating and a particular scenario isn’t accounted for in the document.
A healthcare proxy may or may not decide exactly like the principal. A broader version of healthcare proxies is a durable power of attorney (DPOA). A durable power of attorney empowers an individual, a family member or a lawyer, to act on behalf of the principal, who can’t communicate anymore.
The scope can be limited or extensive per the will. A durable power of attorney may be entrusted to sign checks, make financial decisions, create estate plans, liquidate property or assets, and ensure the living will’s execution.
However, the responsibilities assigned to a durable power of attorney cease to exist with the principal’s death.
A living will isn’t valid after the principal’s death. However, religious rituals, such as burial or other customs, are usually honored. A healthcare proxy or agent and durable power of attorney aren’t relevant after the advance directive expires.
The last will and testament come into effect.
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