Chapter 25: Planning for End of Life Decisions
Living Wills and Organ Donation

Most elder law specialists recommend that you execute documents that authorize someone to act for you in the event you are unable to act for yourself. That’s the point of the previous chapter, where we discuss health care advance directives, trusts, durable powers of attorney, and other ways of having a person stand in for you. But maybe there is no one you trust to act for you. In this chapter, we look at documents that state your wishes but don’t name someone to stand in your stead.

A living will is a written declaration that lets you state in advance your wishes about the use of life-prolonging medical care if you become seriously ill and unable to communicate. It lets your wishes be carried out even if you become unable to state them. If you don’t want to burden your family with the medical expenses (medical expenses in the last month of life average over $20,000) and prolonged grief involved in keeping you alive when there’s no reasonable hope of revival, a living will typically authorizes withholding or turning off life-sustaining treatment if your condition is irreversible.

Living wills typically come into play when you are incapable of making and communicating medical decisions. Usually you’ll be in a medical state such that if you don’t receive life-sustaining treatment (intravenous feeding, respirator) you’ll die. If your living will is properly prepared and clearly states your wishes, the hospital or doctor will normally abide by it, and will in turn be immune from criminal or civil liability for withholding treatment. If the doctor or institution cannot go along with your wishes as a matter of conscience, they must make an effort to transfer you to another provider.

Some people worry that by making out a living will, they are authorizing abandonment by the medical system, but a living will can state whatever your wishes either for or against any or all treatments. So, even if you prefer to receive all possible treatment, whatever your condition, it’s a good idea to state those wishes in a living will.

All states recognize living wills, or medical directives as they are sometimes called, but they are far from uniform. There are two kinds of living wills: statutory (those that comply with the state’s statute) and nonstatutory (those that don’t). The principal difference is that statutory living wills are thought to give medical providers more certain immunity from liability if they comply with your wishes. Moreover, statutory living wills generally address only terminal illness and permanent unconsciousness. Depending on the state you live in, they may not address advanced illnesses such as late stage Alzheimer’s disease where death is not yet imminent.

A statutory living will complies with all the formalities required under the living will statute of your state. Typically, the requirements involve detailed witnessing or notarization requirements and sometimes the use of specific warnings or other language. Most of the statutes include a form that may be mandatory or merely optional. But even if mandatory, you have the opportunity to add to or expand on the instructions, and it is usually advisable to do so. Standard living will language is usually too broad and general to be of much guidance when a real decision about continuing treatment has to be made. It is important to individualize your living will by stating your preferences and adapting the general language to the specifics of your medical conditions, if that is possible.

The form required for a valid living will differs in each state -- be sure to check with a lawyer for advice.

Usually, the decision to write a living will should be made after consulting with your doctor and lawyer. Your particular medical history may make some treatments more likely in your future. If you are writing a living will yourself, consider explaining the kinds of circumstances in which you believe continuing to live would be worse than death. That will help you to explain when you would or would not want any form of life sustaining treatment. Also describe what you would want at the end of life (e.g., good pain management, expressions of forgiveness or thanks) and not just what you don’t want. You do not have to list particular treatments you want or don’t want unless you wish to do so, although it is advisable, and in some states necessary, to make clear your wishes about artificial nutrition and hydration. If you have a medical condition that makes certain unwanted treatments more likely, you may want to address those treatments (For example, someone with chronic obstructive pulmonary disease may want to be very specific about when a respirator is to be used or not used.)