Last updated on: 6/9/2008 1:16:00 PM PST
Are Living Wills a Good Idea?
General Reference (not clearly pro or con)
The American Bar Association, explained in its website's section on "Law for Older Americans," (accessed July 31, 2006):
"A living will...is simply a written instruction spelling out any treatments you want or don't want if you are unable to speak for yourself and terminally ill or permanently unconscious. A living will says in effect, 'Whoever is deciding, please follow these instructions!' On its own, a living will is very limited--it usually applies only to end-of-life decisions, and standard instructions tend to be general."
July 31, 2006 - American Bar Association (ABA)
Joseph Pozzuolo, JD, Partner at Pozzuolo & Perkiss, Lisa Lassoff, JD, Associate at Reed Smith and Jamie Valentine, JD, Associate at Pozzuolo & Perkiss wrote in their article, "Why Living Wills/Advance Directives Are an Essential Part of Estate Planning," that appeared in the Sep. 2005 issue of the Journal of Financial Service Professionals:
"Living wills can be used to refuse extraordinary, life-prolonging care and are effective in providing clear and convincing evidence that may be necessary under state statutes to refuse care after one becomes terminally ill.
A recent Pennsylvania case shows the power a living will can have. In that case, a Bucks County man was not given a feeding tube, even though his wife requested he receive one, because his living will, executed seven years prior, clearly stated that he did 'not want tube feeding or any other artificial invasive form of nutrition'...
A living will provides clear and convincing evidence of one's wishes regarding end-of-life care."
Sep. 2005 - Lisa Lassoff, JD
Joseph R. Pozzuolo, JD
Jamie Valentine, JD
The National Hospice and Palliative Care Organization wrote in its 2005 pamphlet, "Questions and Answers: Advance Directive and End-of-Life Decisions":
"Living wills address end-of-life decisions only. An agent appointed through a medical power of attorney usually can make healthcare decisions for you in a wider range of situations than those involving end-of-life care.
Benefits of having a living will: If your agent must decide whether medical treatment should be withheld or withdrawn to permit you to die, your living will can reassure your agent that he or she is following your wishes. Further, if the person you appointed as agent is unavailable or unwilling to speak for you, if you have been unable to identify an appropriate agent, or if other people challenge a decision not to use life sustaining medical treatments, your living will can guide your caregivers...
If you have no one to appoint as your agent, it is especially important that you complete a clear living will."
2005 - National Hospice and Palliative Care Organization
Linda Emanuel, MD, PhD, Professor of Medicine at Northwestern University Medical School, wrote in her article, "Living Wills Can Help Doctors and Patients Talk About Dying," that appeared in the Dec., 2000 issue of the Western Journal of Medicine:
"Moving away from the notion of a legal defense against aggressive physicians, the living will movement realized that it is the process that is the central issue...
Eventually, living wills came to be seen as a vehicle for achieving greater wisdom and skill in a fundamental aspect of health care and a civilized approach to mortality. Advance care planning is a process of discussion, a component of care. Worksheets are for helping reflection and deliberation and for team building between the professionals and families and the patient. Legal documentation has a small but legitimate role. The outcomes are quality experiences for dying persons and for those caring for them. Most people facing terminal illness want to secure dignity, comfort, control, and a chance to leave a purposeful legacy. They do not want to burden their loved ones. Advance care planning with quality care at the end of life can, if done well, provide these things for most people."
Dec. 2000 - Linda Emanuel, MD, PhD
Dena Frenkel, financial advisor, wrote in a June 14, 2004 article, "Commentary: Planning Ahead - Don't Delay to Draft a Living Will" that appeared in The Daily Record of Baltimore, Md.:
"Thirteen years ago, Terri Schiavo was 26 years old and seemingly, in good health. Unfortunately, Terri suffered cardiac failure that subsequently led to massive brain damage, leaving her in a coma-like state, unable to speak.
Like many people, Terri, now 39, did not have a written record of her wishes for care, so when she became ill, the decisions about her care fell to family members, physicians, lawyers, judges and evan a governor. If Terri had created a living will, much of the 13-year court battle over her fate, that ensued, could have been avoided.
If there is one positive outcome of this tragic story, it is that Terri's story has brought to light the importance of preparing for the future and for the unpredictable. According to a recent survey from the National Council on Aging, 74 percent of people polled believe that creating a living will is very important. In fact, creating a living will tied with building up savings for retirement as the most important factor in preparing for later life."
June 14, 2004 - Dena Frenkel
Wesley Smith, JD, Anti-Euthanasia Activist, wrote in his 1997 book Forced Exit:
"Living wills negate informed consent. Since no one knows the future, by definition their care or noncare instructions must generally be written. Thus, when an incapacitation occurs, the patient's feelings and desires about this specific circumstance may not be known. The living will puts tremendous power into the hands of doctors, who are empowered to decide whether and when the living will takes effect, when treatment should be withdrawn or withheld. Moreover, the decision regarding the type and extent of medical intervention to be withheld is the doctor's. And this power isn't restricted to 'extraordinary care' such as ventilators to assist with breathing, but to any medical intervention--from not treating a curable bacterial infection to withdrawing food and fluids so that the patient starves and dehydrates to death. Thus, with a living will, the check of informed consent is surrendered to medicalized decision making...
Living wills are analogous to the used car advertised as a cream puff that is really a lemon."
1997 - Wesley J. Smith, JD
Angela Fagerlin, PhD, Core Faculty Member at the University of Michigan Medical School, and Carl Schneider, JD, Chauncey Stillman Professor for Ethics, Morality, and the Practice of Law at the University of Michigan Law School, wrote in their 2004 article, "Enough: The Failure of the Living Will," that appeared in the Hastings Center Report:
"Not only are we awash in evidence that the prerequisites for a successful living wills policy are unachievable, but there is direct evidence that living wills regularly fail to have their intended effect...
When we reviewed the five conditions for a successful program of living wills, we encountered evidence that not one condition has been achieved or, we think, can be. First, despite the millions of dollars lavished on propaganda, most people do not have living wills... Second, people who sign living wills have generally not thought through its instructions in a way we should want for life-and-death decisions... Third, drafters of living wills have failed to offer people the means to articulate their preferences accurately... Fourth, living wills too often do not reach the people actually making decisions for incompetent patients... Fifth, living wills seem not to increase the accuracy with which surrogates identify patients' preferences."
2004 - Angela Fagerlin, PhD
Carl E. Schneider, JD
Rita Marker, JD, Executive Director of the International Task Force on Euthanasia and Assisted Suicide, wrote in her Apr. 13, 2005 article "Be Prepared" that appeared in the National Review Online:
"Most living wills instruct an attending physician to withhold or withdraw medical interventions from its signer if he is dying or in a permanetnly vegetative state. But, since the document is so vague and the attending physician may be unfamiliar with the signer's views and values, the document could be interpreted by the physician in a manner that was not intended by the signer. A Washington State case provides a sad example of this.
Mary Jo Estep, a very active retired schoolteacher, broke her hip. As part of her rehabilitation she checked into a nursing home where, on admission, she signed a living will that stated she was not to receive extraordinary measures if she was dying. A few days before she was to go home, a tired nurse gave Ms. Estep the wrong medication--a mistake that could have been reversed easily at a local hospital emergency room. But that didn't happen. Instead, a doctor wrongly interpreted her living will to mean that Estep would not want treatment... She died that night...
Mary Jo Estep's case is unusual but not unique. Other cases of overly broad interpretations of living wills have taken place."
Apr. 13, 2005 - Rita Marker, JD
Focus on the Family wrote in a section of their website entitled "Advance Medical Directives," that was last updated on Dec. 6, 2005:
"The 'Living Will' Declaration is discouraged...
'Living Will' Declaration:
A vague statement generally stating that a physician may withold or withdraw treatment if you are terminally ill or unconscious
A piece of paper that medical professionals may ignore or misinterpret
Gives blanket authority to a doctor you may or may not know, a serious concern in these days of managed care
Attempts to predict your preferences in often complex medical situations that you cannot forsee by offering a narrow list of options that may be used to prohibit treatment you would want in a certain circumstance
Allows 'treatment' to be defined by state law; in many states, medically assisted nutrition and hydration is considered medical treatment
May be used to justify the removal of life-sustaining interventions (ventilators, feeding tubes, etc.) for patients who are disabled but not dying."
Dec. 6, 2005 - Focus on the Family