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What Is a Living Will?
A living will, sometimes called an advance directive or an advance health care directive, is a legal, written document that contains your preference for medical care if you cannot make decisions for yourself. A living will should guide the choices your caregivers and doctors make in the following circumstances:
- You're terminally ill
- You're seriously injured
- You're in a coma
- You're in the late stages of dementia
Your living will should describe the medical treatments you do and do not wish to be used to keep you alive. You can also include preferences for other medical decisions, such as pain management.
Why Is a Living Will Important?
When you prepare a living will, you can ensure that you receive the medical care you want. A living will also helps to:
- Relieve caregivers of the burden of making a difficult decision in a moment of grief or crisis.
- Reduce disagreement or confusion among family members and caregivers about the choices you would want to make.
Who Should Have a Living Will?
Although you may associate living wills with older adults, living will documents are useful regardless of your age. Unexpected situations, such as a car accident or illness, can happen at any stage of life.
Typically, any adult who is of sound mind and at least 18 years old can create a living will. Sound mind is generally defined as having the ability to understand what the document is and what it contains.
When Does a Living Will Go Into Effect?
A living will can only take effect if you are both alive and unable to communicate.
Your living will can take effect once medical professionals determine that you are in a severe medical condition, as defined by the laws in your state, and unable to communicate your wishes.
A doctor can generally determine:
- Whether you have lost your ability to make decisions or understand treatment options
- Whether you can communicate your wishes in any way
If you name someone who will be in charge of medical decisions that are not related to life support, your living will would go into effect when you can no longer make your own decisions.
How Is a Living Will Different From a Traditional Will?
A will, also known as a last will and testament, differs from a living will.
Your last will and testament lets people know what you want to happen after your death. Details included in this document include how you want others to handle your property and other assets and family responsibilities, such as naming legal guardians for your children.
Your living will, however, lets people know what you want to happen in certain cases while you are still alive but unable to express your wishes for medical care while in a terminal or unconscious state.
Is a Living Will the Same as an Advance Directive?
Generally speaking, a living will is one document, while advance directives can include several documents. A living will can be called different terms in different states. In some cases, the term living will is used with advance directive interchangeably. Make sure you know how your state refers to these documents legally when you need to draft your living will.
Other terms used include the following:
- Advance health care directive
- Directive to physicians
- Declaration regarding life-prolonging procedures
Complete advance directives may include several documents:
- The living will itself
- A do not resuscitate, or DNR, order
- Instructions for organ or tissue donations
- Specific instructions regarding a previously diagnosed illness
- Medical power of attorney
Is a Living Will the Same as a DNR?
Although a living will includes whether you want to be resuscitated in certain situations, it is not the same as a do not resuscitate order. A DNR is a separate document, and it has specific requirements to be valid. A DNR must be prepared in consultation with and signed by your doctor.
A DNR is a legally binding order from a physician stating that no steps will be taken to restore breathing or restart your heart if you experience respiratory or cardiac arrest. Some people choose to create a DNR because steps to restore breathing or restart a heart often involve CPR, which comes with increased risks for ill or older adult patients.
A DNI (do not intubate) is similar to a DNR, but this document covers matters related to intubation.
Image via Flickr by hang_in_there
Questions To Consider When Writing a Living Will
Some questions you will want to think about when writing a living will include the following:
- Do you want or not want certain interventions related to breathing and feeding?
- Do you want to receive or exclude certain pain management medications or procedures?
- Do you want a DNI or DNR order?
- Do you want treatment to extend your life in all situations, or would you refuse treatment in certain situations?
- Would you want to receive treatment only if a cure is possible?
- If you have a special medical condition, what related procedures should be carried out?
Medical Decisions To Address in a Living Will
A living will should address a variety of potential end-of-life care decisions.
Cardiopulmonary resuscitation, or CPR, is used to restart a heart that has stopped beating. Your living will should cover if and when you want to be resuscitated by CPR or an electric shock to stimulate your heart.
If you're unable to breathe on your own, mechanical ventilation can take over your breathing. You should determine the following:
- Whether you would want to be placed on a mechanical ventilator
- When you would want to be placed on a mechanical ventilator
- How long you would want to be on a mechanical ventilator
If you cannot feed yourself, you can receive nutrients and fluids via a tube in your stomach or intravenously. Again, you should determine the following:
- Whether you want to be fed in this way
- When you would want to be fed in this way
- How long you would want to be fed in this way
This process manages fluid levels and removes waste from your blood if your kidneys no longer function. You should decide the following:
- Whether you want to receive dialysis treatment
- When you want to receive this treatment
- How long you would want to receive this treatment
Antibiotics and Antiviral Medications
Various medications exist to treat infections. If you are near the end of your life, do you want infections treated aggressively with medications, or would you prefer to allow an infection to run its course?
Also known as comfort care, these interventions can keep you comfortable and manage your pain while still following your other wishes for treatment. Palliative care can include the following:
- Receiving pain medications
- Avoiding invasive treatments and tests
- Being allowed to die at home
Organ, Tissue, and Body Donations
You can specify wishes for organ and tissue donation in a living will. You will be temporarily kept on life-sustaining treatment until the procedure to remove organs for donation is complete. Stating that you understand the need for this temporary intervention in your living will can help medical professionals avoid confusion about your wishes.
You can also donate your body for scientific study and state this donation in your living will. You should contact a university, medical school, or donation program for information about how to register.
Preparing a living will involves thinking about difficult decisions. Instead of dealing with these matters on your own, contact an experienced lawyer who can help you make sure your wishes are clear.
Meet some of our Living Will Lawyers
John Daniel "J.D." Hawke is an experienced attorney with a law practice in Mobile, Alabama. He was born in Fairhope, Alabama and after earning his undergraduate degree at Auburn University, he received a law degree from Thomas Goode Jones School of Law in 2010. After law school, he formed the Law Office of J.D. Hawke LLC and over the last decade he has fought incredibly hard for each and everyone of his clients. His practice focuses on representing people facing criminal charges and clients dealing with family law matters. In addition to criminal defense and domestic relations cases, he also regularly handles contract disputes, personal injury cases, small business issues, landlord/tenant disputes, document drafting, and estate planning. He is licensed to practice law in the State of Alabama and the United States District Court for the Southern District of Alabama.
Thomas Codevilla is Partner at SK&S Law Group where he focuses on Data Privacy, Security, Commercial Contracts, Corporate Finance, and Intellectual Property. Read more at Skandslegal.com Thomas’s clients range from startups to large enterprises. He specializes in working with businesses to build risk-based data privacy and security systems from the ground up. He has deep experience in GDPR, CCPA, COPPA, FERPA, CALOPPA, and other state privacy laws. He holds the CIPP/US and CIPP/E designations from the International Association of Privacy Professionals. Alongside his privacy practice he brings a decade of public and private transactional experience, including formations, financings, M&A, corporate governance, securities, intellectual property licensing, manufacturing, regulatory compliance, international distribution, China contracts, and software-as-a-service agreements.
Attorney of 6 years with experience evaluating and drafting contracts, formation document, and policies and procedures in multiple industries. Expanded to estate planning last year.
George is a lifelong Houston resident. He graduated from St. Thomas High School and then Texas A&M University. He obtained his Doctor of Jurisprudence from South Texas College of Law in 2007. He is experienced in real estate, estate planning & probate, civil/commercial matters, personal, injury, business matters, bankruptcy, general counsel on-demand, and litigation. He is active in the community serving as past-president of the St. Thomas Alumni Board, a current member of the Dads Club Aquatic Center Board of Directors, current member of the Dickinson Little Italy Festival of Galveston County Board of Directors, and former PTO President for Briarmeadow Charter School.
My clients are often small and medium size technology companies, from the "idea" stage to clients who may have raised a round or three of capital and need to clean up a messy cap table. I help with all legal matters related to growth that keep founders up at night - hiring people, allocating equity, dealing with shareholders and investors, client negotiations and early litigation counseling (before you need a litigator). I've seen a lot, and because I run my own business, I understand the concerns that keep you up at night. I’ve been through, both on my own and through other clients, the “teething” pains that will inevitably arise as you scale-up – and I’m here to help you. I have over 20 years international experience devising and implementing robust corporate legal strategies and governance for large multinationals. I now focus on start-ups and early/medium stage technology companies to enable a sound legal foundation for your successful business operations. Many of my clients are international with US based holding companies or presences. My 17 years abroad helps me "translate" between different regimes and even enabling Civil and Common Law lawyers to come together. Regularly, I handle early stage financings including Convertible Notes, Seed and Series A/B financings; commercial and technology contracts; international transactions; tax; mergers and acquisitions.
Sammy Naji focuses his practice on assisting startups and small businesses in their transactional and litigation needs. Prior to becoming a lawyer, Sammy worked on Middle East diplomacy at the United Nations. He has successfully obtained results for clients in breach of contract, securities fraud, common-law fraud, negligence, and commercial lease litigation matters. Sammy also counsels clients on commercial real estate sales, commercial lease negotiations, investments, business acquisitions, non-profit formation, intellectual property agreements, trademarks, and partnership agreements.