Sometimes clients ask me, “What is a Living Will?” and, “Should I have one?” A Living Will is a document that discusses a person’s wishes regarding whether to withhold or withdraw life-prolonging procedures, if the person has a terminal condition, end-stage condition, or is in a persistent vegetative state. A few common examples of a life-prolonging procedure would be being on a ventilator, being on a feeding tube, or being on life support. We often refer to this in conversation as “artificially prolonging life.”
Any competent adult can make a Living Will; however, the Living Will document must have two witnesses and one of the witness can not be related to that adult.
In order for the Living Will to become in effect, two doctors (the patient’s attending physician and least one other consulting physician) must certify that the patient has either: 1) a terminal condition, 2) an end-stage condition, or 3) is in a persistent vegetative state. A terminal condition is one where the patient has a condition caused by injury, disease, or illness, and there is no reasonable medical probability of recovering and which can cause death. Similarly, an end-stage condition is an irreversible condition that is caused by injury, disease, or illness, which results in the patient having deteriorated and there is a reasonable degree of medical probability that treating the condition would not be effective. This was added to deal with conditions such as Alzheimer’s, dementia, and Parkinson’s disease. Finally, persistent vegetative state is a permanent and irreversible condition of unconsciousness and the patient has no voluntary action or cognitive behavior of any kind and no ability to communicate or interact purposefully with his or her environment. A good example of this is the Terri Schiavo case, here in Florida.
Although many people think that a Living Will must state that the patient wants the doctor “to pull the plug,” a Living Will can also state the desire to be kept alive no matter what. The Living Will should be drafted to conform to different faiths and cultures. Even though the patient’s wishes are written down in a Living Will, the patient should still talk to his or her family about his or her wishes regarding end-of -life decisions beforehand. Also, even if the Living Will states that the patient does not want life-prolonging treatment, the patient can still receive palliative care and treatment for pain and suffering.
The burden is on the patient and or their health care surrogates, guardians, etc. to provide a copy of the Living Will to the doctor, hospital, and/or facility. So if you or your health care surrogate/family do not give a copy of the Living Will to the medical provider, the medical provider can not be held responsible for failing to abide by it.
At Osterhout & McKinney, we draft Living Wills and other Estate Planning Documents. Call us at (239) 939-4888.