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Living Will and Advance Directive

February 18, 2016

By Raymond M. Roberts, Esq.

What is a living will?

A living will is a directive that you sign and give to your doctor that advises the doctor of your wishes with regard to medical treatment.  Previously, the directive was not enforceable. Pennsylvania law now allows a person to make a directive as to his or her care in the event that he/she is unable to communicate their wishes.  The law is beneficial in that it allows a doctor to follow the directive without fear of liability.  It also provides that life insurance policies can’t be voided because the choice to withhold treatment was considered suicide.

The living will is a document used primarily by persons who wish not to be kept alive by artificial means if there is no hope for recovery.   Like a medical power of attorney, it can also be used to appoint a person to make medical decisions for you if you are unconscious or incapacitated.  Many hospitals now require a living will or medical power of attorney to be on file when admitting senior citizens or someone with a history of chronic (or potentially debilitating) illness for treatment.

Is there a difference between a living will and a medical power of attorney?

The main difference between a medical power of attorney and a living will is that a medical power of attorney only gives another person the ability to authorize medical treatment for you if you are unable to do so.  If you do not wish to be kept alive by artificial measures, an attorney-in-fact having medical power of attorney can authorize the withholding of treatment.  For this reason it is very important that if you hold these beliefs, that you convey them to your attorney-in-fact.  Further, be sure that your attorney-in-fact will follow your wishes.

A living will is not going to have the effect of causing the withholding of medical treatment for a treatable malady.  It comes into play only in the event that you are terminally ill or in a state of permanent unconsciousness with absolutely no hope for recovery.  In that event, you can, by means of this document, tell the attending physician that if, while in this condition, you have a heart attack, you do not want to be resuscitated.  This does not mean that if you are in the prime of life, and suffer a heart attack or are in a car accident, and your condition can be treated and your chances of recovery are good, that treatment will be withheld.  What it does mean is that if you have a terminal illness, and there is absolutely no way that you will ever recover, not even the slightest glimmer of hope, you can direct your doctor to withhold treatment that would serve only to prolong the process of dying.

A living will is a statement of your beliefs.  It is a pre-need declaration of how your treatment is to be conducted if you are unable to make the decisions at the time of need.  Some pro-life groups believe that living wills are wrong, that you should not have a living will because by doing so, you are playing God.  This criticism can be answered by pointing out that if you are dying, doctors, by employing artificial means to prolong the process of death, are interfering with God’s will.  Simply put, both sides to this issue can make convincing arguments in support of their positions.  The decision whether to have a living will is a very personal one.  If you believe that it is wrong to make a declaration, by all means, don’t.  If you have a firm conviction that you do not want to be kept alive by artificial means if there is no hope for recovery, you may wish to execute a living will.  In any event, before making a decision, talk about it with your family, your friends and your clergyman; be sure about your decision.

If you do not want to have an advance directive, you could still execute a healthcare power of attorney that will include a HIPAA release authorizing healthcare providers to release information regarding your treatment or condition to your agent, and will give a trusted person authority to make healthcare decisions for you when you are incapable of doing so yourself.

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