Disputes With a Living Will

by Erika Johansen
Family members may not agree over a loved one's living will.

Family members may not agree over a loved one's living will.

Hemera Technologies/AbleStock.com/Getty Images

A living will -- also known as an advance medical directive, advance health care directive or advance directive for a natural death -- is a document that states the creator's wishes regarding health care should he become incapacitated and incapable of making his own medical decisions. The living will may also appoint a second individual to make such medical decisions.

Living Will Advantages

The great advantage of a living will is that if the creator becomes incapacitated, she knows that her own wishes will control her medical care, rather than those of someone else. The typical living will lists both acceptable and unacceptable types of medical treatments in the event of terminal illness, as well as instructions on whether to use or not use artificial life support in the event the incapacitated person can't survive on her own. The living will may also appoint a health care proxy or representative, an individual to make medical decisions in the patient's stead.

Living Will Disadvantages

In practice, there can be some problems with applying living wills. Many of the words in a living will are vague, leaving them open to interpretation by doctors and medical personnel. For instance, deciding whether a patient has become incapacitated can be a gray area open to interpretation. Crafting precise language may help avoid some of these problems, but interpretation will often become an issue. Another problem is the doctor must have access to the living will in order to carry out the patient's instructions. While many state laws require immediate delivery of the completed will to the primary physician, people often switch primary physicians and don't remember to redeliver the living will. Depending on where the will is stored, the new doctor may not receive the instructions in time to apply them.

Disputing Living Wills

Each state's laws define what constitutes a proper living will in that state. Generally, however, in order to execute a living will, the person singing the will must be either over the age of majority or an emancipated minor and of sound mind. The document typically must be signed in the presence of at least two witnesses and some states require that it be notarized. Once a living will has been properly executed, it generally cannot be overridden or revoked by anyone other than the creator unless the disputing party can prove that the creator was not of sound mind at the time he signed the document. If the doctor feels unable to comply with the living will, for whatever reason, he must tell the patient at the time he receives a copy and if the two parties can't agree, the doctor will generally transfer the case to another doctor.

Without Advance Directives

When there is no living will or when a copy cannot be located, a doctor will typically turn to close family members for instructions on the patient's medical care. Courts may also appoint an independent guardian to make such medical decisions. Therefore, the living will can be a useful tool for those who don't wish to leave their medical care in the hands of others.