Don’t Let a Living Will Be the Death of You

A living will is a legal document that says “let me die” if death is pending as defined by state statute. It is typically a subjective statement of one’s intent to die – specifying how to let one die if one does not die immediately, such as by removal of food and/or water. A living will might also request no resuscitation (restarting the heart when it has stopped beating), mechanical ventilation, tube feeding, dialysis, antibiotic and antiviral medication, comfort care, organ and tissue donations, and donating your body. It does not require incapacity to apply to one’s death. It can and has been exercised despite requests from the signer to no longer apply it and to provide food or water. A formal revocation of a living will in proper form and published to applicable professionals is typically necessary to reverse the effects of a living will.

Most states excuse hospitals, doctors and staff of liability when acting pursuant to a living will. Actions resulting in death before loved one’s are consulted are protected unless bad faith can be proven. There is no policing mechanism to protect against bad faith and numerous studies show that medical personnel, even in the same hospital on the same floor, may interpret a standard living will very differently. In addition to potentially unexpected interpretation of one’s intent to die, there is no requirement that one’s health care agents be notified for permission before life-ending behavior is implemented by medical staff. They usually require a certification by your doctor or another doctor that you are either suffering from a terminal illness or permanently unconscious before they become effective. In most states, death is pending if one is expected to die in six months in the opinion of two doctors. Some states expand that period to a year.

When you sign the dotted line of a living will you are potentially signing your away your legal right of self-determination and accelerating your final moments. Studies over the decades have proven that 50% of one’s lifetime health costs are often incurred in the last 6 months of life. For this reason, government memoranda began circulating as early as the Carter administration to reduce government health care costs by as much as 25% if the living will could be sold to the American public.

Living Will is Statement of Your Intent to Die

The direct origin of the living will is the former Hemlock Society, which became the Society for the Right to Die. Under the Reagan administration, the Patient Self-Determination Act of 1990 required that living wills be made available to all persons entering a hospital. Living wills are perhaps the only documents that attorneys present to their clients that excuse liability to the client without knowing who, when or where liability is excused.

The Supreme Court has ruled that third parties may exercise a person’s right to die. The authority for this is based in the 9th Amendment privacy right through which the Court also found the right to abort. For those without loved ones or who are dispossessed, the third party to exercise one’s right to die is usually the State. It can also be children or other family. Concern for a good death is not required. Michael Schiavo was motivated by insurance proceeds and living with another woman when he exercised Terri Schiavo’s right to die. Most third parties are exercising another person’s right to “die with dignity.”

philanthropy-215x215Economic determinations of what treatments to provide under Obamacare, combined with the powers and lack of policing for living wills, can be a recipe for many more unexpected results in the future. Once one signs a living will, third parties are empowered to apply it against the signer as they determine, with extended periods for consideration of terminal condition and the frequent ability to remove food and water.

A much better solution to end-of-life care is a healthcare power of attorney. This is a legal document that assigns someone to make healthcare decisions on your behalf if you are unable to do so. They can start and stop treatment, or take you home, even against medical recommendations. However, a healthcare power of attorney is superseded by a living will. That means that even if you have a healthcare power of attorney set up, it will be second guessed if a living will is discovered.

Sometimes healthcare centers will ask you to sign a living will when you enter for care. We recommend that you politely decline to sign the living will and instead present a copy of your healthcare power of attorney document to the doctor in charge of care, in front of a witness you bring.

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