Are Living Wills a Good Idea?
General Reference (not clearly pro or con)
[Editor’s Note: An advance directive is a set of instructions given ahead of time. In terms of healthcare, an advance directive may include a living will, health care power of attorney (also called medical power of attorney), and/or a do-not-resuscitate order and instructs medical professionals and others about a patient’s treatment preferences. In some states, these documents are separate, while other states combine two or more.]
The American Bar Association explained living wills in the article, “Living Wills, Health Care Proxies, & Advance Health Care Directives,” available at americanbar.org, accessed on Mar. 27, 2018:
“A living will is your written expression of how you want to be treated in certain medical conditions. Depending on state law, this document may permit you to express whether or not you wish to be given life-sustaining treatments in the event you are terminally ill or injured, to decide in advance whether you wish to be provided food and water via intravenous devices (‘tube feeding’), and to give other medical directions that impact the end of life. ‘Life-sustaining treatment’ means the use of available medical machinery and techniques, such as heart-lung machines, ventilators, and other medical equipment and techniques that will sustain and possibly extend your life, but which will not by themselves cure your condition. In addition to terminal illness or injury situations, most states permit you to express your preferences as to treatment using life-sustaining equipment and/or tube feeding for medical conditions that leave you permanently unconscious and without detectable brain activity.
A living will applies in situations where the decision to use such treatments may prolong your life for a limited period of time and not obtaining such treatment would result in your death. It does not mean that medical professionals would deny you pain medications and other treatments that would relieve pain or otherwise make you more comfortable. Living wills do not determine your medical treatment in situations that do not affect your continued life, such as routine medical treatment and non life-threatening medical conditions. In all states the determination as to whether or not you are in such a medical condition is determined by medical professionals, usually your attending physician and at least one other medical doctor who has examined you and/or reviewed your medical situation. Most states permit you to include other medical directions that you wish your physicians to be aware of regarding the types of treatment you do or do not wish to receive.”Mar. 27, 2018 - American Bar Association (ABA)
CNN, in a CNN Money article, “Ultimate Guide to Retirement,” available at money.cnn.com, accessed on Mar. 28, 2018, stated:
“A living will is a legal document that allows you to express your wishes to doctors in case you become incapacitated. In a living will, you can outline whether or not you want your life to be artificially prolonged in the event of a devastating illness or injury.
A living will is often combined with a ‘health care proxy,’ which allows you to designate someone to make health care decisions for you if you become incapacitated. The living will and the health care proxy together make up what’s called an ‘advanced health care directive.'”Mar. 28, 2018 - CNN (Cable News Network)
PoliceOne.com, in a May 5, 2017 article, “Why LEOs Need a Living Will,” available at policeone.com, stated:
“If you do not have a living will, the decisions to carry out your last wishes could rest in the hands of the courts or a long-lost family member. That’s because when there is no living will, state law takes effect. A living will gives you the power to control how decisions are made and who makes them…
When there is no living will, state law puts the health care power of attorney into the hands of your spouse, then your family. If you have a long-time partner, but you’re not married, your partner would be completely excluded from any end-of-life decisions…
In every case, designating an agent in your health care power of attorney avoids confusion. If you have multiple children, a living will allows you to designate who makes the decisions. That way you’re not leaving your family guessing and arguing over what to do…
Ultimately, a living will gives you, and your loved ones, peace of mind. This process is never going to be easy, but anything you can do to smooth out the logistics is huge. With a clear living will, your family won’t be arguing over what to do, and they won’t second guess themselves.”May 5, 2017 - PoliceOne.com
Protective Insurance Company, in an article accessed on Mar. 27, 2018, “Understanding Living Wills,” available at protective.com, stated:
“A living will is a legal document that informs doctors and medical caregivers what medical care you want if you are unable to communicate due to an accident, severe illness, dementia or coma. It also guides your family to make decisions about sustaining your quality of life that you would agree with. For example, it can specify if you want pain medication, to die at home or in a hospital, and when to cease heroic efforts to keep you alive. Again, check your state regulations and visit the American Bar Association for template forms and additional resources.
Why do I need a living will?
You want your wishes to be recorded in writing, not left to others’ discretion. Your loved ones will be under duress and may not remember – or agree with – what you wish to take place. A living will spares your family the heartache of guessing what to do and protects you from receiving more medical care than you want, such as ventilator support or IV feeding for long periods of time…
While it can be challenging to think through these important choices, it can also be a life enriching process for you and your family. And, you can be comforted by the knowledge that you cared enough to protect their peace of mind during a very difficult time of life.”Mar. 27, 2018 - Protective Insurance Company
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 - Jamie Valentine, JD Joseph R. Pozzuolo, JD Lisa Lassoff-Nentwig, 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 bbout 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
Christopher Gasper, JD, attorney, in an Oct. 25, 2015 blog post, “Why a Living Will Is a Bad Idea,” available at gasperlegal.com, stated”
“Yes, folks. A living will is a bad idea. But what is a living will? Many clients and prospective clients call my office to ask about or to hire me to draft a ‘living will.’ I think that this is a term many latch onto and assume this is what you want. Not quite the story. A living will is technically a merger of a Will (or commonly known as Last Will and Testament) and a Power of Attorney for Health Care. An ordinary will is just that: Ordinary. It sets up the stage for your last wishes such as who the executor is, what is left to whom, and what to do if someone in your Will predeceases you…
With a Living Will, since it has health care provisions, you have to … wait for it … share it with doctors, nurses, hospitals, specialists, staff, etc. Actually, you don’t know who will see it or have access to it. Think about that for a second. You are giving copies of your Will to strangers. Why would you do that? Who would ever advise you that is a good idea?
Okay, if you have a Will and a Power of Attorney as separate documents, you only have to share the POA while keeping your Will completely secret and your privacy secured. You cannot do that with a Living Will. Privacy is just one issue to consider, but it is enough that I refuse to draft these things for anyone who might call or email me.”Oct. 25, 2015 - Christopher Gasper, JD
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.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:
“[T]here 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 - Carl E. Schneider, JD Angela Fagerlin, PhD
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
Carrie Gordon Earll, Vice President of Government and Public Policy of Focus on the Family, in the article, “What Are Advance Medical Directives?,” available at focusonthefamily.com, accessed on Mar. 28, 2018, stated:
“The ‘Living Will’ Declaration is discouraged… for the following reasons…
It is a vague statement generally stating that a physician may withold or withdraw treatment if you are terminally ill or unconscious
It is a piece of paper medical professionals may choose to ignore or often misinterpret.
It can give blanket authority to a doctor you may or may not know, which is a serious concern in these days of managed care
It attempts to predict your preferences in often complex medical situations you cannot foresee by offering a narrow list of options that may be used to prohibit treatment you would want in a certain circumstance.
It allows ‘treatment’ to be defined by state law; in many states, medically assisted nutrition and hydration is considered medical treatment.
It may be used to justify the removal of life-sustaining interventions (ventilators, feeding tubes, etc.) for patients who are disabled, but not dying.”Mar. 28, 2018 - Focus on the Family
Tadeusz Pacholczyk, PhD, Director of Education at the National Catholic Bioethics Center, in an article accessed on Mar. 27, 2018, “Should a Catholic Have a ‘Living Will’?,” available at catholicnewsagency.com, stated:
“[A living will is a] rather ‘blunt instrument’ in end-of-life situations. When we sit down to draft a living will, we suppose that we can foresee, predict or somehow imagine what our particular medical situation will be like in the future, maybe 10 or 20 years down the road. This is clearly an exercise in speculation, and we might actually fare better in the stock market or in Las Vegas than in an exercise of this sort…
There is a better choice available to Christians than a living will. We can choose a surrogate, a living person, who will make health care decisions in real time on our behalf if we are rendered unable to do so. The proposed surrogate (also called a ‘health care proxy’) is someone who cares deeply about us, who loves us, and is reasonably able to make decisions in accord with our known wishes and with our best medical and spiritual interests in mind. Filling out a form to designate our health care proxy is something that each of us should do as a sensible way to prepare for difficult end-of-life situations that may arise. Preparing such a document can also prompt us to begin discussing these important topics more effectively with our families and loved ones.”Mar. 27, 2018 - Tadeusz Pacholczyk, PhD