Hard But Necessary: Living Wills

Nobody likes to think about old age, incapacitation, or, death. However, everyone will face at least two of those things. But the middle one – incapacitation – is one where if it happens to you, it can cause a lot of pain and suffering for you or your loved ones if you have not adequately prepared for it prior to its having occurred.

“How so?” Well, we are talking about situations in which people are terminally ill or injured, and close to death in a hospital setting. Modern medicine has many methods it employs to attempt to prolong or sustain a patient’s life. Many of these methods are controversial and people have strong opinions about whether they would want to undergo these treatments and methods to extend their life in a terminal scenario. Some common examples of things that terminal patients may have to consider are ventilators, artificial nutrition/hydration (feeding tube), hospice care, coma care, cardiopulmonary resuscitation (CPR), organ donation, implantable cardioverter-defibrillators, pacemakers, and/or surgical interventions and quality-of-life post-surgery; nursing homes, colostomy bags, being a burden on family, etc. Religious beliefs can also be a factor in decision making.

The patient knows best what he or she wants relative to all those scenarios. So, if the patient becomes mentally incapable of making his or her own decisions either through dementia, coma, or any other means whereby they cannot communicate their wishes, then the decisions will fall on the next of kin. This can be heartbreaking for the family and, at worst, lead to familial discord if there is disagreement about what decision to take. Furthermore, one can only imagine the extreme discomfort of the patient themself if they must submit to a procedure that they would not have wanted or voluntarily chosen.

Enter, Living Wills. A Living Will is designed to address and alleviate the above scenario by memorializing the patient’s treatment wishes before they reach the point of incapacitation. A patient can clarify, for example, that he or she does not wish to receive artificial nutrition or CPR under any circumstances. Ideally, a Living Will should be created far in advance of terminal hospitalization and should be revisited periodically if your treatment philosophies change. A Living Will only applies while a person is alive, so it is not a last will and testament or trust. However, it can be included as part of a comprehensive estate plan. 

To create one:

1. Decide what care is wanted or not wanted
2. Appoint a trusted person to be a healthcare proxy or durable power of attorney for healthcare
3. Put it in writing
4. Have it signed, witnessed, and notarized, and
5. Give a copy to the healthcare proxy and the hospital. An attorney is not required to create a Living Will.

However, a Living Will cannot be revisited or redrafted once the ability to communicate for has been lost. Therefore, if you had a very recent change of opinion about a particular treatment method, you could be left in the lurch if you did not have a Living Will. It will remain in effect and control as last written when you had capacity. With that much potentially at stake, engaging an attorney to draft it for you and to be attentive to your wishes, can give you peace of mind that your Living Will is clear, enforceable, and in line with your choice. 

Confused about a legal issue? Interested in drafting a Living Will? Connect with an experienced attorney who can help you navigate the legal process and provide you with assistance. Finderson Law LLC offers free consultations to discuss your case. Give our firm a call at (260) 420-8600, use the chat box on our website, or text us using the website link! 

We are always here to help bring our clients comfort, hope and ease regarding the complications of the law. As attorney Roger Finderson is now licensed in Florida, we are happy to help Floridians alongside our Hoosiers in every way.