The Role of the Living Will

Go to an attorney for a Will and you’ll get not one document, but several—the Will, a Durable Power of Attorney, a Health Care Power of Attorney, and what may be the most overlooked and under-appreciated of the documents, a Living Will. The Will lays out what happens after you die. The other three documents focus on what happens while you’re alive.

Brad Henry is an estate and elder law attorney at Strauss Attorneys PLLC in Asheville, North Carolina. He says “Living Will” is a confusing name and is often confused with the “Will.” But the Living Will is rather unique within the bundle of documents you receive.

The purpose of the Living Will is for you to give directions to medical providers about whether or not to continue life support in three situations at the end of life:

  • You have an irreversible condition and will pass away soon. Under that scenario, your Living Will directs doctors to remove life support to avoid drawing out your death and allow you to die naturally.
  • You’ve lost consciousness and will not regain consciousness. In other words, you are in a permanent vegetative state. In that scenario, the Living Will directs doctors to remove life support and allow you to pass away.
  • You have severe or advanced dementia requiring life support because you’ve lost the ability to swallow due to physical deterioration caused by the disease and a feeding tube is necessary.

With a Living Will, you appoint a person to administer the provisions of the document. That person doesn’t make decisions for you. Instead, that person is speaking to medical providers on your behalf telling them what to do at the end of your life as laid out in the Living Will. You have not put the person appointed in the uncomfortable position of deciding whether to remove life support. You have only asked them to make sure your previously stated wishes are carried out.

There is one exception to these rules. You can give the person you appoint under your Health Care Power of Attorney the authority to override the instructions in your Living Will. This has been more frequent during COVID, because of what is known and not known about the disease.

Another consideration as you consider your Living Will. Do you want medical professionals to provide nutrition and/or hydration during the times when your Living Will is activated?

Don’t hurry through the construction of your Living Will. Think carefully about what you want at the end of your life. Talk with people in the medical community about what they’ve seen. Make sure your Living Will is not an overlooked and under-appreciated document.

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