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Preparing a Living Will

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In the event that you are incapable of communicating or making decisions for yourself, a living will outlines your end-of-life care and medical treatment preferences. Everyone should have an advance directive, as end-of-life situations can happen at any age due to an accident or illness.

Living Will

This legal document identifies medical treatments you would or would not accept to keep you alive and may include other medical decisions, such as pain management and organ donation. Consider how important self-sufficiency and independence are to you and what circumstances may make you feel life is no longer worth living. Do you want to be alive at all costs in any situation, or would you only want treatment if a cure exists?

You can address several possible end-of-life care scenarios in your living will, including:

  • Cardiopulmonary resuscitation (CPR) – Restarts the heart when it has stopped beating and can be done manually (chest compressions) or mechanically (defibrillator).
  • Mechanical ventilation – Takes over the job of breathing if you can’t breathe on your own.
  • Tube feeding – Supplies the body with fluids and nutrients intravenously or through a tube in the stomach.
  • Dialysis – Manages fluid levels and removes waste from your blood if your kidneys do not function.
  • Antibiotics or antiviral medications – Treats many infections. Would you prefer the infection to run its course or aggressively use pharmacy treatments if you are near the end of your life?
  • Palliative or comfort care – Includes various ways to keep you comfortable, managing pain while abiding by other designated treatment choices. You may choose to die at home or receive strong pain medications, avoiding other invasive treatments or tests.
  • Organ and tissue donation – Permits temporary life-sustaining treatment until the organ removal procedure is complete.
  • Donating your body to science – Makes your body available for scientific study at a medical school or university program.

Durable Medical Power of Attorney

Naming a health care or medical power of attorney is a type of advance directive. They name a health care advocate to make medical decisions for you. Depending on where you live, a durable medical power of attorney may be called an agent, proxy, surrogate, or advocate.

State laws regarding living wills vary from one jurisdiction to another. Following state legal requirements and guidelines is imperative to ensure your living will is valid. Retaining the services of an elder law attorney or estate planning attorney can ensure your living will complies with laws in your state, such as witnessing and notarizing your documents.

Selecting the right individual to act as your medical power of attorney is important since it’s impossible to anticipate every situation, and your health care agent may have to make a judgment about your care wishes. Your attorney may encourage you to select one or more alternates in case your first choice can’t fulfill the role. Select a medical power of attorney that meets the following criteria:

  • They meet your state’s health care agent requirements
  • They are not your physician or a part of your medical team
  • They are willing and capable of discussing medical care and end-of-life issues with you
  • They have your trust to make decisions that adhere to your values and wishes
  • They are trusted to advocate on your behalf if there are disagreements about your care

Orders to Refuse Resuscitation or Intubation

A do not resuscitate (DNR) and do not intubate (DNI) order is not part of an advance directive or living will. To establish your preferences, speak to your doctor, who can make them as part of your medical record. Although you may have a living will preference that addresses DNR and DNI orders, have a physician create these individual documents each time you’re admitted to a new health care facility or hospital.

Physician Orders for Life-sustaining Treatment (POLST)

Some states include a provider order for life-sustaining treatment (POLST) or medical order for life-sustaining treatment (MOLST) document as part of an advance health care directive.

They address patients who are already diagnosed with a serious illness. While this form doesn’t replace your directives, it provides instructions for the doctor that reflect the treatment you prefer. Your doctor fills out the form based on conversations you’ve had about the likely course of your illness and advance directive treatment preferences.

Creating Advance Directives

After reflecting on your choices for a living will, meet with your doctor and attorney, who can help you create the written content for an advance directive. States have specific forms, and your lawyer can help to ensure the forms are correctly filled out, as some may require a witness or notary.

Once your documents are complete, take the following steps:

  • Keep the originals in an easily accessible but safe location.
  • Provide a copy to your doctor.
  • Provide a copy to your health care agent and any alternate agents.
  • Keep a list of the people who have your advance directives.
  • Talk to your family and other loved ones about your health care wishes to provide clarity to family members to prevent conflict or guilt during difficult times.
  • Carry a wallet-sized card indicating you have advance directives, your health care agent, and the state(s) location where your directives are.
  • Travel with a copy of your advance directive.

Regular Review and Changes to Advance Directives

You can change your directives whenever you wish if you are of sound mind. You must create a new advance directive form, distribute the new copies to the appropriate individuals, and destroy all old copies. Some states have specific requirements for changing directives, so consult your attorney about relevant laws.

Discuss any directive changes with your primary care physician. Add these new medical directives to hospital or nursing home charts and make sure your health care agent, family, and friends know of the changes.

Review and make changes to your directives in case of a new diagnosis, a marital status change, or about every five years. Regular review of your living will ensures it still reflects your wishes and is up to date.

This article offers a summary of aspects of estate planning. It is not legal advice and does not create an attorney-client relationship. For legal advice, contact our Ruston, LA office by calling us at (318) 255-1760.

Do You Understand an Advance Directive?

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Kevin stands at the door of Winnie’s nursing home room, tears streaming down his face. The medical staff just finished inserted a feeding tube into Winnie – an act Kevin knew she didn’t want. Unfortunately, Winnie couldn’t express her wishes due to advanced dementia, and she had no legal documents that expressed her wishes not to be fed by artificial means.  Kevin had no choice but to sit back and watch his wife go through a procedure she didn’t want.

The situation with Kevin and Winnie could have been avoided through the use of proper advance directive. An advance directive is actually a collection of documents. What that includes differs depending on your needs and wishes, along with what the law allows. However, it usually means at least a Living Will, and a Power of Attorney for Healthcare.

The purpose of this set of documents is to allow you to control what happens to your health care in case you cannot speak for yourself. If certain criteria are met, your doctors must consult with your advanced directive before making decisions about your care.

Usually, what this means is that two doctors agree that an individual is terminally ill, permanently unconscious, or at the “end-stage” of a condition. Once that happens, and the individual cannot express their preferences, doctors turn to the advance directive to figure out what the individual wants.

A Living Will determines what happens to an individual making it, unlike a Last Will and Testament, which determines what happens to their money and possessions. A Living Will describes what healthcare providers can and cannot do to prolong your life and/or ease your pain when you cannot express those preferences yourself. For example, do you want to be placed on a ventilator if you cannot breathe on your own? Do you want a feeding tube and IVs set up, and if so, for how long? Do you want to be an organ or tissue donor?

A Durable Power of Attorney for Healthcare lets you choose someone to make healthcare decisions for you when you cannot. They still must follow your Living Will, but they will be able to make decisions not explicitly considered by your Living Will, in accordance with the facts of the situation. In most states, there are “default surrogate consent laws” which allow family members to make treatment decisions on your behalf, but who is chosen to make these decisions and what they choose to do may not be in accordance with your wishes, as it hopefully would be with a Durable Power of Attorney.

Other documents may be part of an advance directive by law, or they may be worth including on your own volition. These include Do Not Resuscitate orders and Physician Orders for Life-Sustaining Treatment, among others. You might also consider an advance directive in case of a mental health crisis.

This is a difficult subject to consider, and it always seems like it won’t be necessary. But nearly 70 percent of Americans don’t have plans in place for a worst-case scenario, which means for some of them, decisions may be made for them with which they would not agree, if they had the capacity to choose. For that reason, it is worth thinking about implementing an advance directive even if it seems unnecessary now.

If you or a loved one would like more information about advance directives, please don’t hesitate to reach out contact our office by calling us at (318) 255-1760.