Last month I discussed the ins and outs of a Health Care Proxy. This month I’d like to discuss its sister document, a Living Will. This is not to be confused with a Last Will and Testament (commonly known as “the Will”). The Will does not become effective until after you die, whereas the Living Will is effective prior to death.
In its simplest terms, a Living Will states your end-of-life decisions so people (doctors, hospital staff, family) will know how you want to be treated and what you do (and do not) want. If you are capable of making those decisions at that time, you are always able to do so.
You are always allowed to make your own decisions about your medical care, even if that decision is to refuse medical treatment, and even if that refusal will lead to your death. If you are capable of making that decision, then medical providers must abide by it.
The problem comes in when you are not capable of making that type of a decision. This can be because of a permanent mental impairment such as dementia or a temporary one such as being on large amounts of pain medication or if you are under general anesthesia during an operation.
If this is the case, the doctor now must try to find out what kind of a decision you would have made if you could have. If he or she cannot find that out, the course of action is fairly straightforward: keep the patient alive. That is what they get paid to do. That is what they were trained to do. That is what they even took an oath to do. What they’re looking for at this point is some evidence of what you would have wanted to do.
If your spouse tells the medical staff that you would not have wanted “heroic means” to keep you alive, i.e. artificial nutrition, artificial hydration, artificial respiration, etc., that’s some evidence. Would it be enough for them? Maybe, maybe not. It depends of the totality of the situation. What is your disease, what is your age, what is your total, overall health?
If your spouse and all your children tell the medical staff that you would not want to be kept alive in this situation, that is more evidence of your wishes. Again, it may or may not be enough. But, if one of your children tells the doctor that he wasn’t sure about your wishes, all bets are off. They will then use all means available to them to keep you alive. Let the hospital administration and the courts figure it out. The doctors understand that once they “pull the plug,” they can’t put it back in. We’re talking about your life, not a set of Lionel trains.
A Living Will is a written document, read and signed by you in front of two witnesses. This is a tremendous amount of evidence to the medical staff of what your wishes truly are. Is it a guarantee? No. The Living Will is not a statutory document and the medical staff is not, by New York law, obligated to follow it. But it will go a long way if they know what your true wishes are.
Lastly, try to remember that signing a Living Will does not mean that they’re immediately going to cease all life-sustaining treatment. If the medical staff can maintain or give you back some quality of life, they will do so. It is only when giving such treatment would serve only to prolong the dying process that they would consider withholding or withdrawing such treatment.