The Value of Living Wills - Stotis & Baird

Deciding for Yourself - The Value of Living Wills by Dave Maloney

Most everybody who heard the story of Terry Schiavo’s last days agreed that they didn’t want that to happen to them. Some heard the story and could not believe that her husband was not able to disconnect her from life support sooner. Others thought it was cruel to end life support at all. Whatever your view, an advance directive would likely have avoided the entire dispute.

In the media, advance directives are often referred to as “living wills.” Actually, a living will is only one type of advance directive. The two most common types of advance directives are living wills and durable health care powers of attorney (DPAs). It is important to note that these legal instruments vary greatly in the types of protections they may provide.

A living will only applies in narrow circumstances. A living will is a written statement that informs your doctor whether you would want death-delaying procedures used if you have a “terminal” condition and are unable to state your wishes. A terminal condition means an incurable and irreversible condition such that death is imminent and the application of any death delaying procedures serves only to prolong the dying process. Since many treatments and procedures could be considered death delaying, your living will should be as specific as possible about which procedures you wish to avoid. For example, you should always make your preferences known in writing about whether you would want to receive food and liquids administered artificially through tubes. It is important to note that before a living will can be applied to a patient, the attending physician must certify in writing that the patient is terminally ill.

A durable health care power of attorney (DPA) is much more flexible document that lets you choose someone, to make health-care decisions for you in the future if you are no longer able to make these decisions for yourself. It allows you, as the principal, to tailor the authority you wish to grant your agent as broadly or as narrowly as you please. Your agent would be required to follow any specific instructions you may have regarding your care. For example, you may give instructions regarding consent or refusal of certain types of treatment on religious or other personal grounds. You may grant your agent authority to admit or discharge you from any hospital, nursing home or other healthcare facility. You may also leave instructions regarding anatomical gifts and disposal of remains. However, so long as you are able to make these decisions, you will have the power to do so. For most people, a DPA is a better tool than the living will.

It is important to note that advance directives are not just a legal tool for older people. In fact, the most well known landmark courts cases concerning advance directives (those cases involving Nancy Cruzan, Karen Ann Quinlan and most recently Terry Schiavo) involved individuals in their 20’s. Living wills and DPA’s are inexpensive to prepare, often under $150 if you do it through an attorney. They can also be prepared without the aid of attorney, provided you find a good set of instructions and the proper form. You may, however find that the additional advice an attorney can provide would be worth the minimal investment.