Competency of Patient
As with other legal documents, a living will is not valid if the patient is not competent to sign it, such as in cases where the patient has a mental condition that prevents him from fully understanding his decisions. Thus, a living will executed by a legally incompetent patient may have problems standing up in court. Competency, or mental capacity, refers to the patient’s ability to understand the decision he is making by signing the living will, as well as the ability to communicate that decision. Patients are generally presumed to be competent unless there is sufficient evidence to the contrary.
Your living will could have trouble resisting a court challenge if it was not signed in front of the appropriate witnesses according to your state’s laws. For example, Arizona requires one witness and a notary; Colorado requires two witnesses but no notary. Most states also restrict who may witness the living will. This may include prohibitions against witnesses who are related to the patient or who are responsible for payment of the patient’s medical care. Since state laws on living wills differ, it is important to consult an attorney or online legal document site to ensure you are signing your living will in front of the appropriate witnesses.
One way a living will could be challenged is based on a lack of reciprocity between states. For example, if a patient signs a valid living will according to the laws of State A but then moves or receives treatment in State B, State B’s courts may not honor it if the living will does not comply with State B’s laws. Most states have reciprocity provisions whereby they will recognize a living will created in accordance with another state’s laws. However, since each state’s laws differ, you may want to consider creating a living will for several states, especially if you spend significant amounts of time in multiple states.
State law may also allow a challenge to the attending physician’s medical determination of the patient’s condition. For example, Ohio law specifically allows a patient’s designated health care representatives or certain family members to file a complaint with the probate court to challenge a physician’s conclusions regarding the patient’s condition. While this type of court proceeding does not directly challenge the validity of the living will, the court may have to interpret any unclear terms of the living will in the context of the patient’s current medical condition. The result of such interpretation may not be what the patient originally intended when he signed the living will.