Living Wills

September 15, 2011

Beginning with California in the 1970s, all but a couple of states have enacted legislation regarding advance instruction directives for health care. These directives are commonly known as living wills, even though they have nothing to do with the distribution of property and deal with dying rather than living. Living will statutes often are termed natural death legislation. Specific legal provisions vary from state to state. However, the common theme of natural death legislation is support of an adult patient’s right, while the patient is still mentally competent, to sign a written directive concerning the patient’s wishes about the use of life-sustaining medical treatments in the event of later serious illness and an incapacity to make and communicate autonomous decisions at that future time. Compliance with such a directive protects or immunizes involved health care professionals and treatment facilities against possible civil or criminal liability for withholding or withdrawing medical treatments under the conditions specified in the directive.

Ordinarily, the principal or maker of the document is presumed to have the present mental capacity to execute a living will and to revoke it, absent substantial evidence to the contrary. The legal force of an instruction directive goes into effect only when the patient, after signing the document, later becomes intellectually and/or emotionally incapable of making medical decisions personally. In most cases, it is left to the individual’s personal physician to clinically determine when that person has become incapable of making decisions and, therefore, when the advance directive becomes effective.

Most living will statutes and forms embody one of two approaches, either check-off options for particular types of treatment (e.g., “I do/do not want to be given antibiotics if I have a life-threatening infection”) or extremely general, amorphous standardized language to express preferences regarding particular forms of medical treatment (such as, “If I become terminally ill, do not use any extraordinary or heroic medical measures to keep me alive longer”). Although we usually think of living wills as instruments for limiting life-sustaining medical treatment in the future, in some states, the living will statute permits a person to specify in an instruction directive that he or she requests the provision of particular medical interventions under certain enumerated circumstances (e.g., “I want my life to be extended through any available medical interventions to the greatest extent possible”).

A handful of states have taken the legislative approach of providing a more open-ended format for documenting health care instructions prospectively. This creates an opportunity for individuals to write directives (often referred to as “Values Statements”) that express their values, beliefs, and preferences in their own words by responding to questions such as, “What would be your most important goal if you were critically ill, to stay alive as long as possible or to be made as comfortable and pain-free as possible?” Some living wills incorporate personal religious considerations that are especially significant to the individual executing the directive.

SEE .ALSO: Advance directives, Capacity, Durable power of attorney for health care, Informed consent

Suggested Reading

  • Hanson, L. C., & Rodgman, E. (1996). The use of living wills at the end of life. Archives of Internal Medicine, 156, 1018-1022.
  • King, N. M. P. (1996). Making sense of advance directives (rev. ed.). Washington, DC: Georgetown University Press.
  • Ulrich, L. P. (1999). The patient self-determination act: Meeting the challenges in patient care. Washington, DC: Georgetown University Press.

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