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This material is intended to be a general
statement of living will laws in Pennsylvania and is not a detailed
guide. Be sure to consult with an attorney if you have specific
questions.
What is a Living Will?
Why is it important to have a Living Will?
When does a Living Will become effective?
Can someone be charged with murder
if he complies with my wishes?
Who can make a living will?
Can life support be terminated if there is no living will?
What happens if a physician refuses to comply?
Must I use the form provided by the Pennsylvania Legislature?
Who should I give the Living Will to?
Can I revoke the Living Will?
Can I make up a Living Will myself?
What is a Living Will?
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".
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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.
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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.
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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.
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Who Can Make a Living Will?
Anyone of sound mind over 18 years of age.
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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.
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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.
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Must I Use the Form provided
by the Pennsylvania Legislature?
No, but it is best to do so since the Legislature approved
the form.
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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.
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Can I Revoke the Living Will?
Sure. You can amend or revoke it anytime before you die.
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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!
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For more detailed answers on these
or any other legal matters,
please feel free to contact me at my office.
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