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ANSWERS ABOUT LIVING WILLS
A living will is a written document in which you designate someone (a "surrogate") to make medical decisions on your behalf if you are in a coma or state of permanent unconsciousness. A living will authorizes termination of life support under certain circumstances. A living will is to be followed if you cannot give instructions for your own medical care and allows you to authorize the withholding or withdrawal of the treatment and procedures that only keeps you alive. A living will is also called an "Advance Health Care Directive". Why Is It Important to have a Living Will? If you don’t have a living will, someone–your relatives, a doctor, a judge–makes medical decisions for you if you are in a coma or state of permanent unconsciousness.. Due to the uncertain state of the law, you may be kept alive against your wishes for months or years, possibly in pain, possibly able to comprehend your pain and helplessness and yet able to do nothing about it. In the famous Cruzan case, the state of Missouri opposed the wishes of both parents to terminate the life support of their daughter, who was in a coma with no hope of recovery. The case went to the United States Supreme Court, which held that the Missouri could require "clear and convincing evidence" before it could allow termination of life support. Since the woman had no living will and there was no "clear and convincing evidence" of the woman’s wishes, the state could require that she be kept alive although the family unanimously wanted her life support terminated. If there had been a living will life support could have been terminated without the heart-breaking ordeal and legal costs of a lawsuit. The present status of the law is that a living will cannot be signed by someone under 18 or by a mental incompetent. If the family members go to court to terminate life support, there are no legal guidelines to let anyone know the result. When Does a Living Will Become Effective? As long as you are competent and able to express your
health care wishes you can authorize, yourself, the withholding or
withdrawal of life support. However, if you are incompetent or cannot
express those wishes, the living will authorizes your surrogate to make
the decisions if you are in a coma or state of permanent unconsciousness. Can Someone be Charged with Murder if He Complies with My Wishes? No. Pennsylvania law provides that the withdrawal or withholding of life support services is not considered suicide or homicide. No one can go to jail for complying with your wishes pursuant to a properly executed living will. Anyone of sound mind over 18 years of age. Can Life Support be Terminated if There is No Living Will? Sometimes, sometimes not. The absence of a living will produces many, many ethical, religious, moral and legal problems. It is always best to express your wishes in writing in a living will and not by oral directives that may or may not be followed. What Happens if a Physician Refuses to Comply? The physician is not bound by the directive, but must assist in getting you to a physician or health care provider who will comply. Must I Use the Form provided by the Pennsylvania Legislature? No, but it is best to do so since the Legislature approved the form. Who Should I give the Living Will To? You should always keep the original in a safe place–but not in a safe deposit box since it may be difficult to retrieve if you are unable to sign to get into the box. Your physician and your surrogate should get a signed copy. You should also discuss the living will with them in advance so they know your wishes. Sure. You can amend or revoke it anytime before you die. Can I Make Up a Living Will Myself? Sure. I always tell clients that they can make up any legal document they wish and do anything they want with it. However, it amazes me that anyone would write their own living will in the hope that it might be followed when they are on their deathbed. A living will is too important a document to sign without a full discussion with an attorney! For more detailed answers on these
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