A Living Will, not to be confused with a Last Will and Testament or Living Trust, is a legal document that provides end-of-life care instructions, such as under what conditions you want medical providers to withhold or withdraw life support or life-prolonging measures when you are unable to give those directions yourself. A Living Will is also commonly referred to as an “Advance Directive for a Natural Death.” A Living Will only comes into effect when your attending physician determines that you lack the capacity to make medical decisions and your chance of regaining that ability is highly unlikely.

The purpose of a living will is to ensure medical treatment is carried out or withdrawn in certain end-of-life situations according to your wishes, rather than having family members or other individuals to decide for you. In such instances, you may be caught in the middle of an emotional battle between loved ones who have differing views on what’s in your best interest. While answering questions concerning these issues may not be the easiest or most enjoyable of tasks, making your answers to these questions known through a Living Will may save your loved ones a great deal of headache and heartache.

The most notable example of the issues that can arise in the absence of a living will is the case of Terri Schiavo, who was kept on life support for over 15 years after being declared to be in a persistent vegetative state. The story made national headlines as Terri’s husband and family fought over whether to remove her feeding tube, with the legal battle making its way all the way to the White House. In the end, a federal appellate court ruled in favor of Terri’s husband who alleged she repeatedly told him she did not want to be kept alive by artificial means. Of course, nobody could know this for sure.

Creating a Living Will/Advanced Directive

While it should always be in writing, each state has its own legal requirements for creating a legally valid Advanced Directive. For instance, in both South Carolina and North Carolina, a Living Will must be signed by you and by two qualified witnesses and notarized to be effective.  Additionally, most states have a standard form Living Will which is preferred to a custom document. As an estate planning attorney, this makes preparing a client’s Living Will the easiest document to draft but the most difficult to go over with the client, since these forms are filled with ambiguous language and rely on the client to initial the correct boxes to establish their wishes. When creating a Living Will, you should discuss the different options with your estate planning attorney, and making sure you fully understands what each option means in plain language is where an experienced estate planning lawyer truly adds value to this step of the planning process.

What procedures are covered by a Living Will?

In your Living Will you may decide if and when you would like certain life-prolonging procedures done after you have become incapacitated. These typically include, but are not limited to, the following:

• Resuscitation – whether you want doctors to restart your heart through CPR or defibrillation if it has stopped beating;
• Mechanical Ventilation – whether you want doctors to insert breathing tubes or use mechanical ventilation, and for how long, if you are not able to breath on our own;
• Feeding Tubes – whether to cease both or either artificial hydration and artificial nutrition administered in situations where you do not wish to have your life prolonged;
• Dialysis – whether you want to receive treatment if your kidneys aren’t function and for how long you wish to remain on treatment;
• Pain Medication – what kind of pain management or other treatment you prefer to keep you comfortable;
• Organ Donations – whether you would like to donate organs or tissue for transplantation. If you chose to donate, you may be kept on life-sustaining treatment until removal of organs is complete. Specifying your wishes and acknowledging the need for this process in order to donate will help you avoid confusion.  You may also state your wishes for organ donation on your driver’s license or Healthcare Power of Attorney.

Note that you should also give special consideration to any known illnesses you may have with regards to furthering treatment associated with those illnesses.

Is a Living Will Necessary?

A Living Will is a foundational document offered as part of any estate plan prepared by our Fort Mill Estate Planning lawyers. An Advanced Directive for Natural Death is general recommended, but it is a matter of personal preference.  Individuals have widely different views regarding their end of life care, and some individuals would rather leave these decisions in the hands of their Agent acting under a Healthcare Power of Attorney. A comprehensive estate plan includes both a Living Will and Healthcare Power of Attorney that work in conjunction with each other. A Living Will can provide the necessary guidance to your healthcare Agent to make the right call in the event a decision needs to be made whether to withhold life-prolonging medical treatment.

Contact our Living Will Attorneys Today

If you would like legal assistance creating a Living Will as part of your estate planning, our attorneys are here to help. Contact our Fort Mill Estate Planning law office at (803) 351-3597 or our Cornelius Estate Planning law office at (704) 608-3429 to schedule a consultation, or send us an email at info@nosaljeterlaw.com.