The use of Living Wills has become
widespread, and forms of Living Wills have become widely available from many sources.
Despite such widespread popularity, the legal effects of Living Wills are often
misunderstood in three important areas.First, Living Wills are effective only in very limited circumstances. For example, in Illinois a Living Will is effective to terminate treatment only if the patient is suffering from "an incurable and irreversible condition which is such that death is imminent and the application of death-delaying procedures serves only to prolong the dying process".
Thus, a Living Will would not be effective in the case of a patient suffering from a permanent vegetative state, unless death is actually imminent. In recent cases drawing media attention the major problem was that death was not imminent, and the patient could be kept alive indefinitely, but without any hope of improvement. However, most people who sign Living Wills intend to limit medical treatment in such circumstances.
A second misconception is that a Living Will directs the withholding of treatment by the attending physician in specified near-death circumstances. However, the physician is not legally bound to follow them. This may be satisfactory when the attending physician knows the patient and his family – but in other situations it can be disastrous. Furthermore, a Living Will does not give any rights to family members, friends, or others to participate in or direct the type of medical treatment to be given or withheld.
Finally, there is a grave danger of misuse of the Living Will by health care providers. It has become increasingly common for hospitals and nursing homes to virtually require patients to sign Living Wills upon admittance. In many instances, patients are led to believe that the execution of a Living Will form provided by the institution is a legal condition for admission. This is not the case. No health care provider has a right to require execution of a Living Will. In addition, it is unlikely that proper advice will be given to the patient as to the legal significance of the provider’s Living Will form.
Even worse is the misuse to which Living Wills may be put when placed in the hands of hospital staff, nurses, and nursing home employees who don’t understand their legal significance. They may use the existence of a patient’s Living Will to deny essential medical treatment to the patient suffering from a condition which is not incurable and irreversible, or from which death is not imminent.
This is very dangerous. Only a physician can properly determine whether a patient has an incurable and irreversible condition, whether death is imminent, or whether treatment may be of benefit to the patient. This is certainly not a decision anyone would want to place in the hands of nurses, nurses aids or other hospital staff.
I have personally observed a situation in which a hospital nurse routinely marked "no code" on the patient’s file whenever the file contained a Living Will. The term "no code" in hospital parlance means that no emergency treatment would be rendered, regardless of the condition of the patient.
On another occasion, a nursing home attempted to require the signing of a Living Will by an elderly patient who, due to a combination of old age, heart trouble and diabetes, required frequent emergency ambulance calls to obtain needed hospitalization. After each such occasion, the patient was able to return to the nursing home after a relatively brief hospital stay. The administrator of the nursing home apparently thought that a Living Will would excuse the nursing home from the bother and inconvenience of obtaining emergency medical treatment for the patient.
In yet another situation, an elderly patient arrived at a hospital in need of an emergency tracheotomy due to a breathing disorder. Necessary treatment was delayed because the hospital found a Living Will signed by another person whose name was similar to that of the patient. The hospital mistakenly thought that the Living Will precluded emergency treatment. As soon as the confusion was resolved by a family member, the procedure was successfully carried out and the patient recovered.
In other situations, medical treatment has been withheld, based upon the existence of a Living Will, even though the patients involved were mentally competent and quite capable of making their own decisions as to the nature and extent of treatment.
If you nevertheless would like to use a Living Will you should never give it to a doctor, hospital or nursing home. Instead, it should be available to one or more family members (or a friend) to be delivered to the attending physician at such time as the need may arise to decide to commence or terminate life sustaining treatment.
A much better alternative to a Living Will is a Health Care Power of Attorney. With a Health Care Power a person designates a trusted friend, family member, or other person as agent to make health care decisions in specific circumstances. The Health Care Power is more flexible and comprehensive than a Living Will.
In contrast to a Living Will, the carrying out of a person’s wishes pursuant to a Health Care Power of Attorney doesn’t depend on the health care provider’s willingness to comply. Your designated Health Care Power of Attorney agent has the authority to require health care providers to follow directions contained in the Power of Attorney, and the decisions made by your agent pursuant to the Power.
