Living Wills

Living Wills

Introduction

Living Wills also known as an advance directive or advance statement about medical treatment. This is a means of exercising choice in advance for patients who suspect that they will suffer mental impairment and become unable to speak for themselves. Advance statements can have legal force if made by an informed and competent adult, clearly refusing some or all future medical treatment once that individual has irrevocably lost mental capacity. Some statements intend to give other instructions, such as requesting certain treatments: these can be helpful in clarifying the patient's wishes, but only a clear refusal of treatment is legally binding in most of the United States. In many countries, patients have some legal powers to use an advance statement to nominate another person to act as a proxy decision-maker.

Discussion

Advance directives/living wills are essential parts of estate planning. Advance health care directives, which include living wills, health care powers of attorney, and do-not-resuscitate orders, are used to provide clear and convincing evidence of an individual's wishes regarding medical treatment when that person is no longer able to do so (McKinney & Berteau, 2002).

In following the spirit and intent of the U.S. Supreme Court's decision in Cruzan, upholding the constitutionality of Missouri's living will statute, the current legal treatment of living wills in state courts allows individuals to effect changes in their medical treatment within certain statutory limits. All states except Massachusetts, Michigan, and New York have living will statutes.

Statutory Limitations

A person executing a living will should consider that the provisions of a living will may not become effective under most state statutes until such time as he or she has become terminally ill. Other states provide that a living will becomes effective when the declarant becomes permanently unconscious in addition to terminally ill (Doukas & Reichel, 2007).

Statutory Requirements

State statutes also differ in their requirements for creating and revoking living wills. All states require a declarant to be the age of majority and require some type of formality in execution. Requirements for executing living wills include having the document witnessed, notarized and/or following a particular statutory form. All states allow revocation of a living will, but vary in what is necessary for the revocation to become effective (McKinney & Berteau, 2002).

Durable Power of Attorney Statutes

Surrogate decision making is common in the context of health care. Surrogate decision making is justified as an extension of the patient's autonomy, allowing others to carry out the patient's wishes when the patient can no longer act for himself or herself.

All states have statutes allowing a person for executing a power of attorney realted to healthcare decisions. This statute allows individuals to designate someone to make health care decisions for them, should they become incompetent. In states not recognizing living wills, or in states not accepting living wills before a terminal diagnosis, the creation of a power (durable) of attorney may be the only way for a non-terminal patient esnsuring the wishes of individual related to the medical treatment are carried out, should ...