Do I Really Need a Living Will?
More than any other legal document, clients are most often concerned or hesitant about signing an advance directive or “living will.” The reasons behind the hesitancy are varied but range from a thought that physicians will not honor the terms of a living will to fears that having a living will results in a failure to treat or an early death. None of these are true and having a living will is an important part of estate planning.
An advanced directive or living will (used interchangeably herein) is a legal document in which an individual’s preferences for care and treatment are outlined. The document provides guidance to medical providers and families about care and treatment for the individual should the individual be unable to communicate for themselves. Often this includes specific direction about care and treatment at the end of an individual’s life. It is critical to remember that a living will is not a direction to not treat the patient. Instead, it is a direction about what treatment the patient may want or not want. For example, an individual may not want life sustaining treatment, but they would want pain medication and palliative care.
Living wills are legally recognized documents but they are not binding. Therefore, a physician may refuse to comply with the directions contained within a living will. However, state laws provide physicians immunity from liability if they follow the directions contained within a validly executed living will. Practically speaking, most treating physicians would consult with family members and the agent appointed under a health care power of attorney before making decisions regarding withdrawing life sustaining treatment, however, all parties involved can look to a living will for guidance.
It is critical to remember that the medical system in America is one of treatment and cure and it is not in the nature of a healthcare provider to not treat a patient but is frequently more likely to over treat in hopes of a good outcome, even when one is not likely. There are several cases which are considered to be landmark cases that illustrate why having a living will is important, even for someone relatively young and healthy.
Karen Ann Quinlan was born in 1954. At the age of 21 she lost consciousness after being on a crash diet, drinking, and taking a valium at a party. Her friends put her to bed but found her unconscious and not breathing shortly after. She was resuscitated and taken to a hospital in Newton, New Jersey. It was determined that she had irreversible brain damage which left her in a persistent vegetative state. Her parents requested that the ventilator, which was keeping her physically alive, be removed because she appeared to be in pain. The hospital refused to do so. Almost 5 months after falling unconscious, her parents filed suit to have the ventilator removed. They lost the initial case with the court stating that removing the ventilator was a medical decision (instead of a legal one) and that removing the ventilator would violate the New Jersey homicide statute. Eventually her parents won on appeal.
More recently, Terri Schiavo was born in 1963. At the age of 26 she went into cardiac arrest and suffered massive brain damage as a result. Her diagnosis was changed to a persistent vegetative state two and a half months after the incident. For two years physicians attempted physical, occupation, speech, and other experimental therapies to attempt to return her to a state of awareness. Eventually, her husband petitioned to have her feeding tube removed. This action was opposed by her parents. The legal battle between Terri’s husband and parents lasted for years and involved both state and federal courts. Eventually her husband was allowed to have her feeding tube removed and she died on March 31, 2005 – almost 15 years after she suffered cardiac arrest.
Both the Quinlan case and the Schiavo case are heartbreaking for all parties involved. The Quinlan case came before New Jersey law permitted an individual to have a living will, thus no guidance existed about Karen’s wishes or feelings about end-of-life treatment. Terri Schiavo did not have a living will so no guidance existed about Terri’s wishes which ultimately led to a long legal battle. Unfortunately, cases like these still exist although with less media coverage and fanfare. It is cases like these that illustrate how an advance directive could provide family members, health care providers, attorneys, and judges with an idea of what treatment an individual would want should something unexpected and catastrophic occur.
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Letha Sgritta McDowell
757-399-7506 | 252-722-2890
Letha Sgritta McDowell is a Shareholder of Hook Law practicing in the areas of estate planning, elder law, special needs planning, estate and trust administration, asset protection planning, long-term care planning, personal injury settlement consulting, guardianships & conservatorships, and tax law. Ms. McDowell’s clients range from high-net-worth individuals with over $75 million in net worth to families with limited assets.
Ms. McDowell is a past President of the National Academy of Elder Law Attorneys and was named as a Fellow of the prestigious American College of Trusts and Estates Council (“ACTEC”) in 2020. She is certified as an elder law attorney by the National Elder Law Foundation (“CELA”) and Board Certified as a specialist in Elder Law by the North Carolina State Bar Board of Legal Specialization. Furthermore, McDowell is accredited to prepare and prosecute claims with the Department of Veterans Affairs.
Ms. McDowell is currently the chair of NAELA’s strategic planning committee, a member of the Board of Directors for the North Carolina Chapter of NAELA, and a member of the Board of Directors for the Purdue Center for Cancer Research. She is the former Chair of the North Carolina State Bar’s Elder Law Specialization Committee and is the former Editor-in-Chief of “Gray Matters”, the newsletter for the Elder Law Section of the North Carolina Bar Association. She is a consultant for InterActive Legal and has worked on several law and technology initiatives including IBM’s Watson project. Along with her experience practicing as an attorney, she has dedicated much of her time writing for national publications including, but not limited to: Wolters Kluwer, Wealthmanagement.com, the NAELA Journal, Trust & Estates Magazine and many more.
- Elder Law
- Estate & Trust Administration
- Estate Planning
- Asset Protection Planning
- Long-Term Care Planning
- Special Needs Planning