WHAT IS A "LIVING WILL?"
More properly termed a "Directive to Physicians," the Living Will is a binding document that provides instructions for the doctor and other medical care givers as to medical care desired by a patient who is incapable of advising the doctor orally due to lack of consciousness or other reasons.
It usually contains directions to medical personnel to cease providing (or not provide) life sustaining medical treatment or equipment for a person who is "brain dead" thus with no realistic hope of recovery. It is legally effective in California only if it is properly executed and only if the person who requests the withdrawal of life support is no longer capable of providing the instructions him or herself. If the person remains conscious and competent, the document can not supersede the instructions of the person; it only is effective if the person can no longer personally give such instructions.
Absent such a document, the doctor and hospital are ethically and legally required to provide all means possible to keep a person alive whether that person is permanently mentally incapacitated and whether or not the person has any realistic chance of recovery. The person may remain in a coma indefinitely; the cost of the care may bankrupt the family; the person may have orally requested that no such care be given: all that will not matter.
And this remains true regardless of the wishes of the family or spouse, regardless of the previously informally expressed wishes of the person, regardless of whether the doctor feels that the efforts are pointless in the long run. The life support must be maintained and must be given or the doctor may be exposed to civil or even criminal liability.
All of us have read stories of a family's wealth being dissipated by a few days or weeks of useless tremendously expensive care being given. It is not unusual for intensive care to cost ten to twenty thousand dollars a day. This writer knows of a wealthy individual who never had time to adequately prepare a will or living will who was left in a coma by a motor cycle accident and who died over eight months later. By the time he died his million dollar estate was nearly bankrupt despite average medical insurance coverage-and there was nothing either his doctor, his family or his friends could do.
Equally problematic are those who are brain dead but left on life support in a coma perhaps permanently. Perhaps the reader read the relatively recent newspaper articles about a young woman injured in an automobile accident and left in a coma from which there was virtually no chance of recovery (her brain had been permanently damaged). After three years she was almost a skeleton since she could only be fed intravenously, and her parents instructed the hospital to cease all life support so that she could die "naturally." The hospital refused since the woman had left no Living Will and the parents sought relief in court requesting a court order to the hospital to remove life support and let her die. The case went to the Supreme Court, lasting several years and causing great anguish to the parents and the court was divided as to the power of the courts to effectively allow the unconscious woman to die.
All this could have been avoided if the woman had expressed her instructions in a Living Will since the court made it clear that it would follow those instructions in the event she was later incapable of instructing her doctor.
The law is not complex. You will be kept alive whatever it costs and no matter how pointless it may seem unless you have instructed otherwise in a Living Will. While your personal physician may find a way to "help" you to die based on your relationship with him or her, relying on such informal understandings is not only risky but puts the doctor at extreme risk. You owe it to both yourself and your doctor to prepare the documentation to avoid that needless danger.
Further, the Directive to Physicians if combined with a Durable Power of Attorney for Medical Care can also instruct the doctor and medical personnel as to all other care you may wish or not wish, including requiring them to take any and all means possible to keep you alive. The only way to be sure your wishes will be carried out is to use a legally binding Directive to Physicians and to make sure your doctor, your family, and your lawyer all have copies of this vital document. See the separate article on the Durable Power of Attorney for Medical Care.
WILL THEY KILL YOU?
There is often confusion as to what a Living Will can do. It is illegal in the United States (with the possible exception of Oregon State) for a doctor to prescribe any medication whose purpose is to terminate your life. It is, put simply, murder. A Living Will cannot alter that.
All that a Living Will can do is instruct the physician not to continue to give or begin to give life support medication or treatment. It will not allow a doctor to provide medicines or procedures that will end your life.
Thus, if you are on a ventilator machine which assists you in breathing but are brain dead and the doctor feels that removal of the machine will result in your imminent death, a Living Will can instruct the physician to remove you from the machine but that is all the doctor is allowed to do; he cannot inject you with chemicals that will promptly end your life, at least legally. Likewise, you can instruct the doctor not to resuscitate you if your heart stops beating on its own.
But if you continue to live even after the ventilator is removed, the doctor can do nothing more to "help" you die. The Living Will stops extraordinary treatment: it does not allow treatment that will intentionally kill you.
INFORMAL "UNDERSTANDINGS" WITH ONE'S PHYSICIAN OR FAMILY
At times people enter into informal "agreements" with doctors or family members to end their lives if they become brain dead with no chance of recovery or if they are suffering from a painful and terminal disease. It is important to understand that such agreements are not only unenforceable, but are illegal and if the person truly does provide assistance to you in dying, they are committing a crime. It is murder. And it is murder even if all they do is help you kill yourself by buying the terminal medication or in any other way helping you.
It is not unique for long time doctors to provide pain medication in such quantities so as to allow a patient to die and, indeed, this writer has heard of doctors and family members who made sure that their friends or loved ones received such a dose of medication that they "never woke up."
But to expect such efforts from your family, friends or doctor is to impose a tremendous burden upon them not only morally and ethically, but legally. While criminal charges are admittedly uncommon, such acts have resulted in criminal charges being brought against family and doctors.
A famous doctor put it well: "If you have elected to end your life due to the pain of a terminal illness, then do it on your own and prepare long before you are too weak to accomplish it. Take your terminal steps when you still have enough strength to do it without assistance or you will leave a legacy of guilt, anguish and perhaps criminal charges."
SHOULD I EXECUTE A LIVING WILL?
It is not legally necessary and, indeed, some people consider it unwise to execute a Living Will. Many people express the worry that the doctor or family or hospital will make a mistake and wrongly conclude that a patient is brain dead or incapable of recovery.
Any good doctor or nurse can provide stories of people given up for dead who recovered despite the "expert" opinion of the medical care givers. It must be admitted that there is always the chance that you would have recovered if they had not removed life saving equipment from you pursuant to your own Living Will.
But the odds of that error are small compared to the more likely eventuality of you remaining on life support long after you have any real chance of recovery at tremendous anguish and expense to your family.
Further, to provide such instructions to your family is perhaps one of the greatest gifts you can give them since it eliminates the danger of one or another family member differing from the rest as to appropriate care and whether to "pull the plug." Such disagreements, in the charged and exhausted atmosphere of a possible death, with guilt and emotional turmoil being likely, can tear a family apart forever.
You owe it to your family to tell them what type of care they should ask the doctor to provide and that includes a Living Will. It is, in the long run, a personal decision as to whether to execute a Living Will instructing as to removal of life support-but all persons should execute a Durable Power of Attorney, described in a separate article on this website.
If you wish to execute a Living Will you must do so before witnesses and those witnesses must execute the document as witnesses. Normally, the witness can be anyone over the age of eighteen but may not be someone providing medical care to you or providing care for you in a nursing home.
If you wish the Living Will form, you should make an appointment to come into our office or can call our office and request us to send you or fax you the form for your consideration. We do strongly recommend that you obtain competent legal advice before executing any legal document. Our telephone number is 415-392-2018 and this website has our e mail address.
You should also review the article on Wills and Trusts, also on this website.