In Drafting a Living Will What Problems Do You Have?

By Heather Frances J.D.

A living will, a type of advance medical directive, can communicate your preferences regarding medical treatment if you are unable to speak for yourself. However, as with many other types of written documents, an improperly drafted living will may simply confuse medical personnel or family members rather than clarifying the patient’s wishes.

A living will, a type of advance medical directive, can communicate your preferences regarding medical treatment if you are unable to speak for yourself. However, as with many other types of written documents, an improperly drafted living will may simply confuse medical personnel or family members rather than clarifying the patient’s wishes.

Informed Consent

Since a living will communicates a patient’s medical decision, it requires the patient to fully understand the medical procedures it addresses. For example, if the patient were capable of consenting to a surgery, a physician would be able to explain that procedure before the surgery, along with the risks and benefits, thereby allowing the patient to give informed consent for the procedure. With a living will, the patient attempts to address all possible medical treatment that might be necessary while the patient is incapacitated, but the patient may not fully understand the implications of the medical decisions he is making since physicians are frequently uninvolved in a living will’s creation. To avoid this problem, the patient should fully review his living will with a medical provider and discuss any questions.

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Specificity

Though it would be impossible to provide specific guidance for every possible scenario, the living will should be as specific as possible. For example, if the living will uses the term “incurable illness” but does not define that term, it leaves a wide range of possible interpretations, which may result in unintended treatment or lack of treatment. Since both arthritis and liver cancer could be incurable conditions, the living will would apply to both situations even though the patient may have intended it only to apply to advanced stages of cancer. Additionally, if a living will is not sufficiently specific, it may be easily misinterpreted by medical personnel as an order not to resuscitate the patient or may misuse medical terms, thereby causing more confusion.

Lack of Individualization

Living wills are often based on a fill-in-the-blank form or highly structured template that does not allow individualization for a particular patient’s needs. While these can be a good place to start, each patient’s living will must be customized to his situation and preferences. For example, a living will for a 20-year-old should address different concerns than a living will for a 70-year-old since the implications of certain medical decisions vary by the patient’s age.The 20-year-old may be more concerned with provisions for care if he is in a persistent vegetative state, whereas the 70-year-old’s living will might address diseases occurring more frequently in the elderly, such as dementia and Alzheimer’s.

State-Specific Requirements

To be enforceable, a living will must meet the legal requirements of the patient’s state. For example, a state may specify the number of witnesses required to observe the patient’s signature. Many states have laws that define terms frequently found in a living will, but since those definitions may vary by state, the patient must understand his own state’s laws in order to create an effective living will. The patient may want to consider hiring an attorney or online service to help draft the living will according to his state’s requirements.

Medical Power of Attorney

A medical power of attorney is a document that names someone else to make medical decisions for the patient when the patient is unable to make those decisions for himself. This type of document may alleviate many of the problems associated with a living will since it simply names an agent to make the medical decisions, thereby avoiding a lack of specificity or individualization in a living will. A patient may choose to have both a living will and a medical power of attorney; in this situation, the living will guides the agent’s decision-making but allows the agent to use his own judgment for situations not clearly addressed in the living will.

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A Guide to Wills

References

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