LIVING WILLS DON’T WORK
A new study reveals that living wills don’t work. For most people, this may come as a surprise, since the concept of a living will has become ingrained into the American legal landscape. New Jersey courts, in fact, have spawned the national movement in this area. The decision of our supreme court in the Karen Quinlan case was seminal.
Yet, others will find little surprising in the title of this column, for they have always believed that living wills don’t work. On numerous occasions a client has said to me, “Do I really need to have one of those? My mother had one and the hospital didn’t honor it.”
What will be surprising to these people is that living wills don’t work because health care providers fail to honor the document – something that the law forbids them to do – but because people often fail to commit to such documents in a meaningful way.
When discussing living wills with clients, I have always made two points abundantly clear. First, in my opinion, everyone should have a living will. The living will might say that the person doesn’t want medical treatment if he is, for instance, in a “vegetative state.” It might say that the person wants to be treated no matter what the hopes are for recovery. Either way, a person should have a living will expressing his general intentions.
Secondly, however, I have always stressed the importance of having a health care power of attorney. That is, I have always stressed the importance of naming someone whom you trust to make health care decisions for you if you cannot make those decisions for yourself.
In New Jersey, a living will and a health care power of attorney can be combined in one document. Together, these documents would be known as an “advanced health care directive.” The advanced directive would not only say what you want done or don’t want done – that is, a living will – the directive would also appoint someone to make decisions for you, that is, a health care power of attorney.
The new University of Michigan study supports my position. Essentially, the results of the study are that living wills don’t work and people would be far better served having a health care power of attorney.
The study is based upon a review of hundreds of studies of living wills, end-of-life decisions, and the psychology of decision-making. The researchers found that living wills fail for five, primary reasons.
One reason, according to the study, that living wills don’t work – most people don’t have living wills. Another reason – and this is my biggest issue with living wills – a person who signs a living will rarely knows what care he would want in some hypothetical future. The third reason, it is difficult for people to state their wishes in an accurate and understandable manner.
Reason number four, even if a person signs a living will, the document is often unavailable when the person needs it. For instance, a person might sign a living will but fail to provide a copy of the document to his family, doctors, and the hospital. When the person has a health crisis, no one will know of the existence of the document, and the person won’t be in a position to inform those who need to know about the document’s existence.
Finally, the study found that even when the living will is available, the surrogate decision-makers – for instance, the family – can rarely apply the document’s instructions to the person’s present health crisis. For example, the person may have said that he does not want “life sustaining treatment,” but such an instruction gives a family member little, tangible guidance when answering a question about a specific procedure.
To me, the second and third reason for a failure of living wills to effectively carry-out a person’s health care wishes have always been flaws that I have seen in the document. When I draft a living will for a person, in almost every instance, the person is not facing a present and significant health care crisis; in other words, the person is in fairly good health. How then is that person to make an informed, medical decision about some far-off, hypothetical future.
Of course, if asked, most people would say, “Oh, no, I don’t want to be put on any respirator.” But is that true? Does a layperson really know what medical procedures he would or would not want.
For instance, sometimes a person can be placed on a respirator for a brief period of time, say one week, while a procedure is performed, then weaned-off the respirator. If the person’s living will said, “no respirator,” that person might die needlessly.
While I am a big believer in every person’s need for a living will, I more strongly advocate the need for a health care power of attorney. I then tell clients that their instructions to their health care agent will help the agent make a better decision and will make the agent’s decision an easier one to make.
After all, no one wants to make the decision to terminate treatment of a family member or friend, no matter how dire the circumstances. So, if you provide a living will for your agent to follow and, perhaps more important, speak with your agent about your wishes, the agent’s decision will be an easier one to make.