Estate planning involves more than just a will or a trust. Other documents are important to ensure your assets are protected and properly managed. Another aspect of estate planning is our healthcare, especially if we are incapacitated. One particular document that is important for our healthcare wishes is a living will.
A living will, also known as an advance medical directive, is a short document in which you explain what your end-of-life wishes are. If this is not in place, it’s possible that decisions about your healthcare could be decided in the courts.
Let’s discuss how to avoid that.
What’s in a Living Will?
A living will lays out your desired manner of care in an end-of-life situation or if you are in a persistent vegetative state. Depending on your values, you may have particular desires one way or another regarding your care.
Specifically, in this document, you make advance decisions about things like artificial nutrition/hydration, life support, pain alleviation, and resuscitation. Many people express a desire not to be kept on artificial life support if they are brain-dead and there is no reasonable expectation of recovery.
The living will puts these desires into writing and informs healthcare providers and other important people what your decisions are ahead of time.
That last part—ahead of time—is specifically why a living will is important to have in place. The decision has already been made. This greatly reduces the risk of additional stress on family members during a time when you are unable to make that decision for yourself.
Expressly stating your wishes on whether to be kept alive on artificial life support, or to be resuscitated after the heart stops, ensures that whatever treatment you receive is in line with your values on this sensitive topic.
How to Make a Living Will
Living wills must be written documents. Oral declarations regarding end-of-life care instructions do not have the same effect in carrying out your wishes. The declarant may create a living will that matches the statutory form in Tenn. Code Ann. § 32-11-105, or a substantially similar form that expresses clear intent to accept, refuse, or withdraw medical care.
A living will is effective upon execution. In Tennessee, any competent adult can make a living will. The document must in writing and signed by the person making it. The living will is valid if it is signed by two disinterested witnesses, or if it is notarized. Tenn. Code Ann. § 32-11-104.
Healthcare providers generally must comply with your living will. If an attending physician cannot, in good conscience, carry out your directive, the healthcare provider must take good faith steps to have another physician carry out the directive. Failure to take such steps can lead to civil liability and be grounds for suspending or revoking his or her license to practice medicine. Tenn. Code Ann. § 32-11-108.
If you want to make changes or revoke your living will, you may do so by executing a document indicating revocation. You may, if you still have legal capacity, orally express revocation of a living will to your attending physician. Tenn. Code Ann. § 32-11-106.
What Happens if I Don’t Have One?
By stating expressly what you desire regarding artificial nutrition/hydration and life support, it reduces the potential for conflict. Where there is no direction and family members disagree on how to care for one who is in such a position, there could be litigation.
A famous case involving this type of situation was Terri Schiavo‘s case in the early 2000s. After suffering cardiac arrest, Terri was in a permanent vegetative state. Her husband desired to remove her feeding tube, which would cause Terri to die of natural causes. Her parents disagreed.
The case between Terri’s husband and her parents lasted for seven years. It went to the Florida Supreme Court and the United States Supreme Court. Congress and the President got involved.
It was an absolute mess. And it was headline news across the country.
Why did it get to that point?
There was not a living will communicating her desires about how to handle this type of situation.
With a relatively short document in place, most or all of that litigation and publicity could have been avoided. While the situation would have been no less tragic, there would have at least been greater privacy and carrying out of Terri’s wishes (whatever they may have been).
Final Thoughts on Living Wills
Confronting our own mortality is a difficult thing. We don’t like to think about the idea of being so physically damaged that we cannot even function.
But it happens. And in order to protect not just ourselves, but our loved ones, we need to make our desires known on this subject.
The living will is fairly simple and helps to avoid many problems during a difficult situation. This is a hard conversation to have, but working with a professional can help to make the process easier.
Reach out to Connell Law, PLLC today to schedule your free consultation on your living will and all other estate planning needs.
