living wills

A Living Will is a legal document in which you state your wishes regarding future health care. While New York State does not have any statutes governing Living Wills, the Court of Appeals, New York’s highest court, has found Living Wills are valid if they provide “clear and convincing” evidence of one’s wishes. Generally, the Living Will is used to express your views or wishes about withholding, withdrawing or continuing life-sustaining treatment that prolongs the process of dying.

Take the case of Robert, for instance, who is currently in a permanent vegetative state. His daughter, Stacy, feels it would be best to terminate treatment and life-prolonging procedures, such as mechanical respiration and artificial feeding, which are keeping Robert alive. Based upon prior conversations she had with her father, Stacy believes that Robert would want to die peacefully, rather than “being kept alive by machines.” However, Stacy’s brother, David, is adamant that all forms of treatment and artificial life-prolonging procedures be continued.

As Robert’s agent, Stacy has the authority to make such health care decisions for Robert. But because Robert never created a Living Will, Stacy is now burdened with the decision to terminate the treatment and life-prolonging procedures for her father. Further, David may have grounds to bring a legal proceeding seeking to continue the treatment because it is his belief, based upon his prior conversations with his father, that Robert would want to “be kept alive at all costs.”

Stacy and David are now at odds with each other. Sadly, this is a scenario that plays out all too often, and cannot be fixed by the Courts. Had Robert prepared a Living Will, his beliefs and wishes would be memorialized in writing, for all to see and understand.

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Because there is no statutory Living Will form, this document can be created and tailored to your beliefs and wishes, and even provide for different scenarios. Perhaps Robert told Stacy he did not want to be ‘kept alive by machines’ if he was in a permanent vegetative state, while telling David that he wanted to “be kept alive at all costs,” if there was a chance he could recover. These two wishes are not entirely contradictory, but are open in interpretation, or perhaps misinterpretation, by his children because his wishes were not memorialized in writing.

In hindsight, Robert should have had a Living Will to provide his health care agent with clear and convincing proof of his wishes when his agent is called upon to make health care decisions. Furthermore, the Living Will provides written proof of your views and wishes to all other family, friends, hospitals and other health care facilities.

Your Living Will is able to express your wishes for various scenarios, including, but not limited to: permanent vegetative state, coma and not expected to recover, terminal illness, incurable condition and imminent death. You also can require that two treating doctors confirm your condition before your health care agent can make the decision to end all treatment and life-prolonging procedures. You can even express your desire to be provided maximum pain relief once the treatment and life-pronging procedure are withdrawn.

Since there is no statutory required form for a Living Will, it’s important to make sure all appropriate questions are addressed, and that it accurately reflects and details your wishes and desires.

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