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Living Wills: Will Your Living Will Survive You?

Aug 17, 2007
A living will is also known as an advance directive, and it is a written document indicating a person's wishes in the event that they are reduced to a vegetative state by some accident or trauma, and whether doctors treating them should go to all efforts necessary to keep them legally living, or to "allow nature to take its course".

Unlike a legal will, courts have not generally recognized the significance of living wills, and the existence of one would not necessarily be legally binding. Most countries in the world have introduced little or no legislation to codify their status for the judiciary. That said, much of what judges and magistrates do is apply the intention of the law to new, unique situations. Therefore, the presence of a living will would factor very heavily in any deliberation by a judge, should your living will be challenged.

One thing a living will cannot do - and this is probably why lawmakers have been reluctant to legislate - is protect a doctor from malpractice, should she be put into a position where she has to decide between attempting to treat a patient who may recover, and obeying the wishes you expressed in your living will.

Of course, there are always circumstances and events which we could never foresee, particularly where death is concerned. Where someone like a community spouse or family member has doubts about whether you would make the same decision now, knowing all the facts, they have grounds to challenge the contents of a living will in a court. If they were able to produce a compelling explanation, they would have a good chance of convincing most courts.

Since there is no legal specification for living wills, there are no official government or municipality forms to pay for and fill out. You might notice, however, that many law firms give free living will forms out on their websites. Such firms have usually just drawn up a fairly standard written declaration that expresses your intentions should any of a number of possible things render you unable to make or express a decision at the time. Most of the living will forms offered at no charge are as robust a legal document as an advance directive can be.

Living will forms have a fairly similar structure addressing a number of key areas: Choice of whether or not to prolong life; whether painkillers should be administered as needed regardless of the chances that this will reduce or end the life of the patient; contact details of your personal doctor; whether you wish to donate organs, which ones, and for what reasons; and finally a declaration that it is your wish and right to refuse medical treatment, and that you have an informed idea of what this means. Usually a living will form includes areas for witnesses and an advising physician to sign the document alongside yours.

Unfortunately, no matter how shrewd a legal document you are able to craft, the advance directives issued in living wills are legally powerless. Ethicists grapple with the extra complications that the instructions of a living will introduce, while most lawmakers dare not tread near the issue.

At the end of the day, if there's a conflict between the informed advice of the doctor, the wishes of the family, and the advance directives of the patient, the outcome will not be satisfactory to all involved.
About the Author
To avoid the costly probate process, have your questions and concerns addressed. Melcher's Law Firm has over 30 years experience in wills, trusts, estate planning, and probate administration. http://melcherslawfirm.com>
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