Living Will Frequently Asked Questions

OUR FREQUENTLY ASKED QUESTIONS WILL HELP YOU TO BETTER UNDERSTAND A LIVING WILL RELATED ISSUES

1. Living Will - what is it?
2. Advance directive - what is it?
3. If I have a living will, do I also need a real "will" or a "living trust?"
4. What is artificial nutrition and hydration?
5. I may want to donate my organs after my death for use as transplants or scientific research. What should I do?
6. Can I revoke my Living Will?
7. What is the difference between a Living Will and a Durable Power of Attorney for Health Care?
8. When should I complete a Living Will and a DPOAHC?
9. Who else should know that I have a Living will?
10. What are examples of powers I could give (or NOT give) to my agent in a DPOAHC?
11. Durable Power of Attorney for Health Care - what is it?
12. Who Should Be My Agent?
13. Is an advance directive executed in another state valid?
14. How will my doctor and hospital know I have a Living Will?
15. How does the DPOAHC differ from a Power of Attorney or Durable Power of Attorney?
16. Who can witness the signing of my advance directives?
17. Am I required to have an advance directive?
18. What if I don't want a Living Will?
19. What if I have more questions?
20. Do I need a lawyer in order to create an advance directive?
21. Is my family liable if my advance directive instructs no heroic measures or life support?
22. Will the wishes in my advance directive be honored?
23. What if I want to make changes to my advance directives?
24. Who Can Help Me Create A Health Care Advance Directive?

Living Will - what is it?
A Living Will is one form of Advanced Directive. Other names for a Living Will are a "medical directive" or "medical declaration." A living will instructs your physician to administer no life-sustaining procedures should two physicians agree that you are terminally ill or permanently unconscious. Being terminally ill generally means that you have less than six months to live. If you do not want artificial nutrition or hydration, the law requires that you say so in your document.

Advance directive - what is it?
An advance directive is a legal document, written in advance of an incapacitating illness, that allows patients to state their preferences about medical care. Most states recognize two forms of advance directives - a living will and a durable power of attorney for health care.

If I have a living will, do I also need a real "will" or a "living trust?"
Yes, because wills and living trusts deal with financial and legal issues, whereas the living will deals with healthcare issues.

What is artificial nutrition and hydration?
Artificial nutrition and hydration means invasive procedures such as tubes and intravenous feeding. It does not include the natural process of eating foods and drinking fluids.

I may want to donate my organs after my death for use as transplants or scientific research. What should I do?
Fill out a Uniform Donor Card and put it in your wallet. Also make sure you communicate your wishes to your close family members and friends.

Can I revoke my Living Will?
You can revoke your Living Will orally or in writing at any time. A divorce action will revoke your durable power of attorney for health care if your spouse is your agent and you have not named an alternate in your document. It is also a good idea to periodically review your documents to determine whether they still reflect your wishes.

What is the difference between a Living Will and a Durable Power of Attorney for Health Care?
A Living Will is a document addressing only deathbed considerations. In this document a client unilaterally declares his/her desire that life-prolonging measures be discontinued when there is no hope of ultimate recovery. A client uses a Durable Power of Attorney for all healthcare decisions, limited by certain elections regarding deathbed issues.
 
Do I need both a living will and a durable power of attorney for health care? Yes, it is a good idea to have both documents because they serve two different purposes. A living will takes effect only when there is no hope for recovery, while a durable power of attorney takes effect whenever you become unable to make decisionssuch as during surgery or even when you become temporarily unconscious. Under law, if the terms of your living will and durable power of attorney conflict, the durable power of attorney controls.

When should I complete a Living Will and a DPOAHC?
Complete these documents before you become ill. An accident or serious illness can happen at any time. Talking with your family and physician now gives you a chance to ask questions and talk about your concerns. If you do this when you're healthy, you'll be thinking clearly as you talk about this.

Who else should know that I have a Living will?
Your immediate family members, your agent, and your lawyer should receive copies of your Living will.

What are examples of powers I could give (or NOT give) to my agent in a DPOAHC?

• Consent to or refuse any medical care used to maintain, diagnose or treat a physical or mental condition.
• Make arrangements for treatment facilities or individual health care personnel.
• Review information regarding the status of my health and treatment.
• Take legal action, if needed, to do what I have directed.
• Direct the use or withholding of life-prolonging treatment.
• Make decisions about autopsy and organ donation.
• Become my guardian, if necessary.

Durable Power of Attorney for Health Care - what is it?
A durable power of attorney for health care is a document in which you name another person to act as your agent to make your medical decisions if you become incapacitated. You can include instructions about which treatments you do or do not want. If you do not want artificial nutrition or hydration, law requires that you say so in your document.

Who Should Be My Agent?
This is an important decision. You may have several close relatives or friends who would be willing to become your Health Care (Medical) Power of Attorney or agent. This person should be able to make tough decisions, to speak up in a crisis situation, to understand your values and desires and could speak for you when you are unable to speak for yourself? Pick someone you trust, who will really listen to your feelings and values. Make sure that person is willing to assume the responsibility of being your representative.
 
Choose just one person to serve as your agent and you may avoid disagreements. If you appoint two or more agents to serve together and they disagree, your medical caregivers will have no clear direction. If possible, appoint at least one alternate agent in case your primary agent is not available.
 
Speak to the person (and alternate agents) you wish to appoint beforehand to explain your desires. Confirm their willingness to act for you and their understanding of your wishes.

Is an advance directive executed in another state valid?
Your out-of-state advance directive is valid in most states, however interpreted in light of the laws of that state.

How will my doctor and hospital know I have a Living Will?
You should provide your doctor and your hospital with copies of your Living Will for your permanent medical record. Any time you are admitted to a hospital, you will be asked if you have a Living Will and your response noted in your medical record.

How does the DPOAHC differ from a Power of Attorney or Durable Power of Attorney?
The DPOAHC is a document that allows you to name a person to make health care decisions for you if you ever become unable to speak for yourself. Neither a Power of Attorney nor a Durable Power of Attorney empowers anyone to make health care decisions for you. They normally address financial and/or business matters.

Who can witness the signing of my advance directives?
In order for your advance directives to be valid, they must be signed in the presence of two witnesses and usually a notary. Persons who may NOT serve as witnesses include your agent named in your durable power of attorney, spouse, heir, attending physician or person supervised by your physician. Thus, the witnesses must be unrelated to you and not financially responsible for your health care. In addition, the witnesses must be at least 18 years old.

Am I required to have an advance directive?
No. Hospital, nursing home, physician or insurance company may require you to have an advance directive in order to provide you with services.

What if I don't want a Living Will?
You're not required to have a Living Will if you don't want one, but it's a good idea in order to guarantee that your wishes are followed regarding medical care. Otherwise, your family will have to make difficult decisions or incur large expenses and time delays if a legal guardianship or conservatorship is needed. If you become incapacitated and you have no Living Will, and your doctor and your family disagree about treatment, your health care decisions may have to be made in a court of law.

What if I have more questions?
You should discuss any questions about advance directives with your family and physician. The hospital's social worker, patient representative or chaplain may be able to assist you, but they can't provide you with legal advice. If you have legal questions, you should consult an attorney.

Do I need a lawyer in order to create an advance directive?
No.

Is my family liable if my advance directive instructs no heroic measures or life support?
No.

Will the wishes in my advance directive be honored?
The law requires that health care providers honor your wishes, although sometimes the documents have created conflict when persons have not talked with family members.

What if I want to make changes to my advance directives?
This is not difficult to do. You simply create new documents that cancel out the old documents.

Who Can Help Me Create A Health Care Advance Directive?
Start by talking to someone who knows you well and can help you state your values and wishes considering your family and medical history. Discuss with your doctor the kinds of medical problems you may face, based on your current health and health history. She can help you understand the treatment choices your agent may face. Share your ideas for instructions with your doctor to make sure medical care providers can understand them.