What is a living will?
A living will is a legal document created to specify the type of medical treatment appropriate for an individual in situations such as:
- End-of-life care
- Other scenarios where a person may not be able to consent to care on their own
A living will and a Last Will and Testament differ in that the living will is not applicable after one’s death and only pertains to medical care, not personal property or guardianship.
A Florida living will (which is one designation of an advanced health care directive) contains particular instructions for how an individual would prefer medical care in regards to being administered or withheld. The document can include topics such as:
- The appropriate situations and methods for which to decrease pain
- When to permit or withhold life-prolonging treatment
- If one would request a Do Not Resuscitate (DNR) order
- What to do regarding an unborn fetus when a pregnant woman is incapacitated
Any person of at least 18 years of age, or an emancipated minor, may create a living will by following the state guidelines for processing the document including the presence of the appropriate signatures and witnesses. A living will can be drafted by an estate-planning attorney in Florida and is usually accompanied by other estate planning documents.
What specifically does a living will plan for?
A living will plans for the unthinkable. It states the conditions for if and what treatment you would accept or decline in the event you are in a situation where you cannot make informed decisions on your own behalf. Such situations where you are incapable of assessing your health care needs would be different types of incapacitation including:
- Terminal conditions
- End-stage conditions
- Persistent vegetative state
In each of the following conditions, life may temporarily continue with the assistance of medical treatment, but not indefinitely or to the extent of recovery.
A terminal condition is a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death. In this situation, medical treatment would only sustain life in the current state. Recovery is not expected; therefore, the only benefit of treatment would be to prolong life.
An end-stage condition is an irreversible condition caused by injury, disease, or illness which has resulted in progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability, treatment of the condition would be ineffective. In this situation, medical treatment would not be effective in slowing, curing, or stopping the symptoms along with other complications associated with the disease or illness.
A persistent vegetative state is a permanent and irreversible condition of unconsciousness in which there is an absence of voluntary action or cognitive behavior of any kind, as well as the inability to communicate or interact purposefully with the environment. In this situation, although life can be sustainable, it would only persist with a substantial lack of mental capacity. An individual’s health may be stable, but due to the mental state possessed by the person, they could never live a socially functioning nor self-sustaining life. Life could only persist with the assistance of a caretaker and life-prolonging medical treatment.
What is the difference between a Living Will and a designated Health Care Surrogate?
A living will and a health care surrogate are both unique documents that each serve a purpose independent of one another. Both are designations that are recognized as advanced health care directives. The living will specifies your wishes for treatment, while the health care surrogate document authorizes an individual to approve or deny treatment on your behalf. It may appear to be unnecessary or conflicting to draft both documents, but it may clarify your desires more than only having one or the other. Drafting only the living will may leave your requests open to interpretation without your insight for clarification. Drafting only the health care surrogate could leave your desires up to the discretion of an individual who may make an emotional decision. Combining the two documents could help reinforce your wishes by having them produced in writing, then having your surrogate explain any misunderstandings. Precision and clarity in describing your specific wishes are crucial to ensure your requests transpire.
Why your estate plan should include a living will?
One could compare a living will to insurance through the notion that it is something you hope you never have to use but will be glad you have it if the time comes. Having a valid and properly executed advance directive will ensure you receive treatment in the manner you desire in the event of incapacitation or terminal illness.
Making your own decision regarding incapacitation empowers you for many different reasons. First, it simply saves you and your family thousands of dollars. In 2009, CBS released an article called the “Cost of Dying”. They reported that Ira Byock, during an interview with 60 Minutes, said that patients in an intensive care unit could spend up to $10,000 a day to be on life support. They also reported that Medicare paid $50 billion the previous year during the last two months of patient’s lives. We all know that the insurance companies get their money back whether from liens, reimbursements, or increased policy charges. Do yourself a favor and add this document to your estate plan.
Another empowering reason for drafting this paper is to preserve your family’s harmony. Even if they don’t agree with the decision, at least you, the person dying, made the call. Without a living will, decisions of uncertainty can and usually do cause conflict between spouses, parents, siblings, children, and friends. Instead of your family having to hire an attorney, go through the legal process to make a decision for you, and delay your death, you can make the decision today, allowing them to avoid the emotional and monetary damages. How great that would be to know that if this situation does ever happen, it will bring your family closer, not rip them apart.
Real Life Example:
The most famous living will case involves the treatment of Terri Schiavo. On February 25, 1990, Terri sustained cardiac arrest at her home in St. Petersburg Florida. She suffered massive brain damage from a lack of oxygen to her brain and was left in a coma. After a few months, when Terri did not get better, doctors changed her diagnosis to a “persistent vegetative state.”
For years after, doctors worked to get Terri to a state of awareness, but nothing worked. In 1998 (yes, over seven years after declaring her in a persistent vegetative state) her husband petitioned to remove her feeding tube, which would cause her to die. Mrs. Schiavo’s parents objected because they believed that Terri would honor her religious beliefs that oppose euthanasia. The battle of differences between the two parties lasted from 1998 to 2005 through court cases under public scrutiny. The final court order resulted in the removal of Terri’s feeding tube in 2005, which ended her life nearly two weeks later.
Because Mrs. Schiavo did not have a living will her true wishes remain unknown. She also did not designate a health care surrogate or durable health care power of attorney to decide what was best on her behalf. Terri’s story is a sad and tragic example of the events that could unfold if an individual does not possess a living will.
A last word:
Like all other estate planning material, many people think it is too soon to consider planning or just do not like to think about it. It is more relevant for young and/or healthy persons to create a living will, than an older individual, because they are more likely to live longer in an unresponsive state. We are living in a time of increasing diseases and cancers, and we need to be prepared for our last breathe. Remember you can’t plan for death after you die!