Do You Have a Living Will, Do Your Parents, Do Your Adult Children?

by: Begley Law Group

by Thomas D. Begley, Jr., Esquire, CELA

What is a Living Will and why has the need become so urgent?  A Living Will is a legal/medical document also known as an Advance Health Care Directive.  It allows an individual to clearly and formally communicate his or her end-of-life wishes to loved ones and to care providers.  The individual makes his or her own choices for end-of-life care.  This helps lift the burden from other family members from making those difficult decisions.  Living Wills are particularly important now for even healthy people, because of COVID-19.  According to Scott D. Halpern, the Director of the Palliative and Advanced Illness Research Center at the University of Pennsylvania, healthy people previously had no urgent need for a Living Will but now with the limitation of patient and family presence brought on by COVID-19 in hospitals having a written documents might be much more useful now than ever.  The client/patient designing a Living Will should consider whether they want invasive treatments, such as CPR, ventilator use, dialysis, chemotherapy, or water or food through a feeding tube.  People should discuss end-of-life preferences as well as quality of life issues.  They are not only legal documents but clinical documents.  

A Living Will is generally part of an overall estate plan that includes a Will and Power of Attorney.  Generally, Living Wills offer three choices in a situation where there is no reasonable hope of recovery or regaining a meaningful quality of life:

  1. The client/patient can choose to terminate life.
  2. The client/patient can choose to be treated aggressively no matter how hopeless the situation.
  3. The client/patient can elect to execute simply a Medical Power of Attorney authorizing a loved one to make medical decisions in the future.  Under current situations with loved ones not being admitted to the hospital, this choice may not be as useful as in normal times.

The final choice is to do nothing, in which event a judge may make the final medical decision.  This choice makes little sense to most people.

The document is designed in two phases.  One is for use as a Medical Power of Attorney to make medical decisions not relating to end-of-life, and the other is to make medical decisions relating to end-of-life.  Some people include medical decision-making provisions in a Financial Power of Attorney, but better practice is to have a separate document for the Living Will/Health Care Power of Attorney.

The document names a health care representative, normally a spouse, child, other loved one or close friend, and grants authority to make medical decisions to that person.  The grant of authority is only effective if the client/patient is unable to make or communicate treatment decisions on his or her own behalf due to a mental or physical disability.  It is good practice to name a back-up Health Care Representative.

The Living Will should grant the Health Care Representative access to medical records.  The document should include HIPAA provisions.  The document should authorize the Health Care Representative to authorize admission to a hospital, nursing home, assisted living facility, or other facility, or to arrange home care, hospice, or respite care, and to summon paramedics or other emergency personnel and to seek emergency treatment for the client/patient.  The document should also authorize the Health Care Representative to give or withhold consent to psychiatric treatment.  The Health Care Representative should also be authorized to consent to or arrange for the administration of pain-relieving drugs or surgical and medical procedures calculated to relieve pain.  The Health Care Representative should also be authorized to discuss the medical condition of the client/patient with a physician and to sign a Practitioner Orders for Life-Sustaining Treatment (POLST) form.

Finally, the document should outline the circumstances under which the client would not want life-sustaining treatment and specific the types of treatment that the client/patient considers life-sustaining.  The client/patient should also specify whether he or she wants fluid and nutrition.

In conclusion, Living Wills/Advance Directives are always a good idea, but have taken on a new sense of urgency given the COVID-19 pandemic.