A Living Will, also called an advance health care directive, is a legal, written document that allows a then competent individual to state their instructions for medical treatment, should they become temporarily or permanently, mentally and/or physically, unable to communicate their decisions.
A Living Will gives guidance to family members and healthcare professionals if a person can’t express his or her wishes. Without a document expressing those wishes, family members and doctors are left to guess what a seriously ill person would prefer in terms of treatment. They may end up in awkward disputes, which occasionally need to be litigated. By planning ahead, you can get the medical care you want and relieve caregivers of decision-making burdens during moments of crisis or grief. You also help reduce confusion or disagreement about the choices you would want people to make on your behalf. Having a clear understanding of your preferences can help your family members avoid conflict and feelings of guilt.
Living Wills work best when accompanied by discussions with your family and loved ones about your personal values and beliefs. Persons to discuss these matters with you might include your lawyer, physician, clergy person and family members.
If you become unable to direct your own medical care because of illness, an accident, or advanced age, the right legal documents are your lifeline. When you don't write down your wishes about the kinds of medical treatment you want and name someone you trust to oversee your care, these important matters can be placed in the hands of estranged family members, doctors, or sometimes even judges, who may know very little about what you would prefer.
Minimum Requirements for a Valid Living Will
• Your name;
• A statement that you are “of sound mind and body” or other representation that you are competent to make the living will;
• Directions to your doctor and health care proxy agent as to what you want done in the event you are in an “incurable or irreversible mental or physical condition with no reasonable expectation of recovery;”
• The date you make the living will;
• Your signature; and
• The signature of at least two witnesses.
1. You can put any wishes you have for medical care in your living will. You can instruct that certain types of care are given, or instruct that certain types of care are not given. In a Living Will, you can tell your agent under your health care proxy to withhold all life-sustaining measures or you can single out certain measures that you do wish to be taken. Your Living Will should express your general wishes but it should also be as specific as reasonably possible.
You should address a number of possible health care decisions in your living will, for example:
• Cardiopulmonary resuscitation (CPR) restarts the heart when it has stopped beating. Determine if and when you would want to be resuscitated by CPR or by a device that delivers an electric shock to stimulate the heart.
• Mechanical ventilation takes over your breathing if you're unable to breathe on your own.
Tube feeding supplies the body with nutrients and fluids intravenously or via a tube in the stomach.
• Dialysis removes waste from your blood and manages fluid levels if your kidneys no longer function.
• Antibiotics or antiviral medications can be used to treat many infections.
• Comfort care (palliative care) includes any number of interventions that may be used to keep you comfortable and manage pain while abiding by your other treatment wishes. This may include being allowed to die at home, getting pain medications, being fed ice chips to soothe mouth dryness, and avoiding invasive tests or treatments.
• Organ and tissue donations for transplantation can be specified in your living will. If your organs are removed for donation, you will be kept on life-sustaining treatment temporarily until the procedure is complete. To help your health care agent avoid any confusion, you may want to state in your living will that you understand the need for this temporary intervention.
• Do not resuscitate and do not intubate orders.
2. While New York State, unlike most other states, does not have a statute that specifically recognizes the Living Will, New York Courts do recognize the Living Will under common law and the United States Supreme Court has held that a person has a right to refuse medical treatment. To be recognized in New York, your wishes must be proved by "clear and convincing" evidence. While such wishes may be established with testimony regarding oral expressions of intent, a written and properly executed document is the best way to meet the "clear and convincing" test and ensure that your instructions are followed. To meet this “clear and convincing” proof test, your intentions must be expressed unequivocally. Even a well-drafted documented is ultimately subject to interpretation by those who need to determine your wishes. Therefore, if you create a Living Will, make your preferences as clear and specific as you can. For example, if you have feelings about particular treatments, such as chemotherapy, express them in the document.
3. There is no standard form for a Living Will in New York. And Living Wills are not interpreted in a consistent way. This means that even a well-drafted Living Will is ultimately subject to interpretation by those who need to determine your wishes. It is hard to draft a Living Will that provides specific instructions with regard to all possible future events. This means that inevitably, a Living Will will require those responsible for your care to interpret general instructions in your Living Will in the context of specific circumstances.
4. You do not need a lawyer to draft this document.
5. You can make your Do Not Resuscitate (DNR) wishes known in your Living Will.
6. Creating a Living Will is voluntary. No one can require you to write one.
7. You may express your wishes or instructions regarding organ and/or tissue donation in this document. Failure to specify your wishes, however, shall NOT be construed to imply a wish not to donate.
Frequently Asked Questions
Can I change, amend or cancel my Living Will?
Yes. A living will can be altered or revoked at any time. It remains in effect indefinitely unless you cancel it, include an expiration date, or describe the circumstances that trigger expiration.
If you want to make changes, you must create a new one, distribute new copies and destroy all old copies. You should also notify your agent, your attorney, your physicians or any other health care providers, and anyone else who has a copy of your change or revocation. You should notify each of these parties of your change or revocation both verbally and in writing. You should make sure a new Living Will replaces an old Living Will in your medical file. New Living Wills must also be added to medical charts in a hospital or nursing home.
It is important to review the document you have signed from time to time to make sure it expresses your current healthcare wishes. Consider reviewing your directives and creating new ones in the following situations:
A new diagnosis. A diagnosis of a condition that significantly alters your life. Discuss with your doctor the kind of treatment and care decisions that might be made during the expected course of the illness.
A change in life circumstances. Over time your thoughts about health care may change. Periodic reviews are important to ensure that the document you have signed are still in accord with your wishes and the law. If it does not, you are free to amend and/or revoke the Living Will.
When Will Your Living Will Takes Effect?
Your Living Will becomes effective only if doctors determine that you can no longer make your own healthcare decisions. This condition is often called "lacking capacity." If you lack capacity, it means you are unable to: understand the nature and consequences of the medical treatment options available to you, or communicate what you want, either by speaking, writing, or gesturing. If there is any doubt about whether you can understand and express your treatment choices, your doctor (after talking with your healthcare agent or family members) will decide whether your Living Will should take effect.
Must Doctors Follow Your Instructions?
Medical professionals must usually do all they can to follow the directions you give in a Living Will. In limited situations, a doctor or hospital will be permitted to deny your wishes. This may happen if:
• You have asked for care that the healthcare provider believes would result in medically ineffective treatment or treatment that violates generally accepted standards of medical care
• Your instruction goes against the conscience--for example, violating a religious belief--of the healthcare provider, or
• Your instruction runs counter to a policy of the hospital or other care facility that is based on reasons of conscience.
Still, a healthcare provider cannot simply ignore your Living Will. A doctor or hospital who won't follow your instructions must promptly inform you or the person in charge of your healthcare decisions, and must try to transfer you to a provider that will honor your instructions (In many states, this rule doesn't apply to pregnant women).
Isn't a Living Will only for the elderly or seriously ill?
No. A living will is not just for older adults or those currently sick. Unexpected health conditions can happen at any time.
Do I need a lawyer to make a Living Will?
No. You can create a Living Will without a lawyer’s help. However, there are some circumstances in which it might be beneficial to get the help of an attorney. For example:
• A lawyer can explain any part of your Living Will that you don’t understand and can answer any questions you may have about how it operates.
• A lawyer can ensure that your wishes are clearly expressed to meet New York's “clear and convincing” proof test.
• A lawyer can also check your document to be sure it is properly signed and witnessed and comply with the formalities required by law.
• A lawyer can prepare what's known as a "psychiatric advance directive" or "mental health care directive" if you want your Living Will to specifically address the types of treatment you do or don't want during a mental health crisis.
• A lawyer can research and draft a Living Will that will be accepted in multiple states if you spend a significant amount of time in more than one state.
Is there a difference between a Living Will and A Health Care Proxy?
Yes. A Living Will contains specific instructions for your care, whereas a Healthcare Proxy appoints someone to make medical choices for you.
A Living Will is a document that contains your health care wishes and is addressed to unnamed family, friends, hospitals and other health care facilities. You may use a Living Will to specify your wishes about life-prolonging procedures and other end-of-life care so that your specific instructions can be read by your caregivers when you are unable to communicate your wishes.
A Health Care Proxy is a document that allows you to appoint another person(s) as your health care agent to make health care decisions on your behalf if you are no longer able to do so. You may give your health care agent authority to make decisions for you in some or all medical situations, if you cannot communicate for yourself.
May I use the Living Will to express my wishes about organ and/or tissue donation?
Yes. You can choose to specify your wishes related to organ donation in your Living Will. Failure to specify your wishes, however, shall not be construed to imply a wish not to donate. Your agent is authorized to consent to organ/tissue donation, unless he or she has notice of opposition, or reason to believe that the donation is contrary to your religious or moral beliefs.
What if I move to another state?
Generally, the “clear and convincing proof” standard in New York is among the strictest of all the states, and documents signed here should be effective as proof of your wishes in other jurisdictions. In New York, if a Living Will from another state complies with the laws of that state, it will be honored in New York. Correspondingly, most states generally consider valid and will accept documents properly executed in another state. Even if you do not move, if you spend any significant amount of time in another state you should have documents which comply with the laws of that state.
Is a Living Will in effect after death?
Any authority granted by a Living Will ends when the person who made the document dies, with the exception that some living wills give healthcare agents the power to make decisions about organ donation or autopsy.
What do I do with my Living Will?
Your Living Will cannot be enforced if no one knows you have one.
Keep the originals in a safe but easily accessible place alongside your other important documents. Give a copy to your doctors, your attorney, your health care agent and any alternate agents. Give a copy to your spouse and/or family members and other people involved in your healthcare. Give a copy to your hospital or care facility. Carry a wallet-sized card that indicates you have advance directives, identifies your healthcare agent and states the existence and location of your Living Will.