Rothman Gordon: Back to Basics Estate Planning: Living Wills

Back to Basics Estate Planning: Living Wills

Throughout this back to basics series, we have covered the basic elements of a comprehensive estate plan. We began with a multi-part series on the reasons to have a Will and then talked about durable powers of attorney in last week's edition. We conclude the back to basics series on estate planning by discussing the Living Will Declaration.

Over the past decade, a good deal of attention has been given to the subject of sustaining life through artificial means when there is absolutely no hope of recovery. One of the earliest and most notable cases in this area involved Karen Ann Quinlan, a 21-year-old New Jersey resident. Doctors were able to save her life after she had swallowed alcohol and tranquilizers at a party in 1975, but she suffered brain damage and lapsed into a "persistent vegetative state." Her family waged an infamous legal battle to remove her from life support. The family ultimately succeeded, but Ms. Quinlan kept breathing after the respirator was unplugged and remained in a coma for almost 10 years until her death in 1985.

In the mid-90s, Pennsylvania adopted the Advance Directive for Health Care Act which gives adults the ability to make their desires known with respect to the use of life sustaining procedures or "heroic" measures. Pennsylvanians are now able to sign a "Living Will" wherein they can state whether they do or do not want to be kept alive by artificial means if they are in a terminal condition or a permanent state of unconsciousness. You can also appoint someone to act as your surrogate in making these types of decisions and state whether you do or do not want to be an organ donor.

Pennsylvania's statute includes a form Living Will Declaration that allows an individual to state specifically their views about the use of such items as cardiac resuscitation, mechanical respiration, tube feedings, surgery or invasive diagnostic tests, etc.

Please note that the form provided in the statute is not the exclusive form, so any statement will suffice so long as it states your desires and is witnessed by at least two (2) individuals. In my years of practice, I have accumulated a number of different forms that are geared towards an individual's religion (I have forms for those of the Orthodox, Conservative and Reform branches of Judaism, for members of the Catholic faith and other branches of Christianity, etc.) and other forms that address specific illnesses such as Alzheimer's Disease.

No matter what form you choose, I recommend that everyone sign a Living Will so that your desires are known to your family and loved ones regarding artificial forms of sustaining life. This takes a tremendous burden off of those caring for you since they will not have to guess at what you would have wanted.

Articles are not intended to be comprehensive. Readers should not act upon any information herein without seeking specific legal advice from the Firm's attorneys.

We are required by Treasury Regulations to advise that this writing is not intended as a reliance opinion and cannot be used for purposes of avoiding IRS penalties.