Introduction to Living Wills and Health Care Directives

A Living Will is a document through which you designate your wish as to the type and extent of medical procedures you authorize if you should ever be diagnosed with a terminal condition or enter into a persistent vegetative state.  In other words, you can document that if you ever become terminally ill, you direct that no extreme measures are used to sustain your life.

In your Living Will, also known as your Health Care Advance Directives, you can also designate a person or persons to make your health care decisions for you if you lose the capacity to make such decisions for yourself or the ability to communicate your decisions – even in situations where your life is not in jeopardy.  These people are your “health care surrogates.”

Your health care surrogate has no authority to act until your attending physician determines that you lack the capacity to make informed decisions.  If the attending physician is unsure about your capacity, a second physician must agree with the attending physician’s conclusion before your health care surrogate’s authority is recognized.

Without a valid Living Will, only a court will be able to authorize decisions regarding medical procedures (or the withholding of them) when you lose the ability to make decisions or to communicate them.  The court does this by appointing a guardian to oversee your medical situation.  Since the court-appointed guardian will not know what your preferences are, the medical choices made may not match what you would have wished. So it is important to document your choices while you have the ability to do so.

It is generally recommended that you name at least one alternate health care surrogate in case your first choice is unavailable or unable to act.  It is also recommended that you discuss your desires with the person or persons you choose so that they clearly understand what you want done and so that they can decide if they would be able to do as you wish during a very emotional time.

In order for your Living Will to be effective, it must meet state law requirements about form, language and the formalities of signing (such as witnesses and notarization).

As with other estate planning decisions, it is important that you create your Living Will before you actually need it – because by then, it may be too late for you to do so.  The Living Will also spares your family the expense of seeking a court-appointed guardian as well as the emotional turmoil of guessing at what you would want to be done.

If you have any questions regarding the above, please contact me and I will be glad to assist you.

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