A Living Will Is not a Death Warrant

If you read my column regularly, you know that I recommend anyone over the age of eighteen having three, basic estate planning documents—a last will and testament, a financial power of attorney, and an advanced health care directive (or living will).  And if you read my column, you know that I think having a financial power of attorney and an advanced health care directive is more important to you than a Will because a Will is only effective after you die, making it more important for your loved ones than for you.

Ever since the pandemic began, I’ve been drafting a lot of estate planning documents.  People see the need for these documents given the fact that over 200,000 people have died from COVID and hundreds of thousands more have found themselves hospitalized or ill.  When drafting a living will for a client, I’ve received questions such as the following:  “What if I have COVID?  I don’t want them pulling the plug on me just because I have COVID.”

A living will allows someone else to make health care decisions for you when you are unable to make decisions for yourself.  In order for a living will to be effective, you must be unable to make decisions for yourself.  In other words, only when you cannot make decisions for yourself can the person you nominated in your living will to make decisions for you—called your health care agent or health care proxy—make decisions for you.  In most instances, the reason you would be unable to make decisions for yourself is because you are mentally incapacitated due to the illness for which you are hospitalized or because you are so ill that you are simply unable to express your opinion in any manner, even non-verbally.

You also must be in one of four health conditions:  terminally ill, permanently unconscious, in a condition where only experimental treatment could save you, or in a condition where the cost of the treatment outweighs the benefit of the treatment.  I draft my clients’ living wills so that the decision of their health care agent (typically their spouse or children or other trusted loved one) is final no matter what the document says.  In other words, the living will might say “I don’t want life-sustaining treatment if I am permanently unconscious,” but given the manner in which I draft my clients’ living wills, the decision of the client’s spouse is final even though the general tenor of the document is that the client doesn’t want medical intervention if he is in one of the four conditions mentioned above.  Drafting the living will in this manner permits the spouse to make the final decision for the client after she has consulted with all the medical professionals whom she deems it necessary to consult.

Unless the client’s health deteriorates and other medical events occur, a client who is suffering from COVID would not neatly fit into any of the four conditions mentioned above (permanently unconscious, terminally ill, etc.).  I do not believe that health care professionals view COVID, in and of itself, as a condition that is terminal.  Furthermore, even if the client was in one of those four conditions, the decisions of his health care agent (his wife, child, or other loved one) is final, so the agent makes the final decision for the client.

My fear when clients begin to think that a living will is, quite literally, tantamount to signing their death warrants is that the clients won’t have a living will drafted.  Sort of a let me close my eyes and ignore this issue strategy to dealing with the issue.  The problem with ignoring problems is that problems don’t always ignore us.  You could get sick.  No one wants to get sick.  If you are sick and cannot make decisions for yourself, then legally, no one else can make decisions for you.

While hospitals, doctors, and other medical professionals might listen to family members, there is no guarantee that they will listen to family members.  A living will ensures that they will listen to the person you choose because they have to listen to that person.

It’s important to have legal documents, including a living will, but it’s also important that the living will is properly drafted so that your wishes are honored.

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