Living Will

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Living Will

A Brief Introduction About the Living Will

A person may have critical health problems at a certain stage in his or her life, which could require specific medical procedures. During this stage, the said individual might not be in a position to express their wishes.

Through this document, you can express your desire towards life-ending action as compared to life-sustaining strategies. When the individual reaches this critical condition, someone is appointed in the will to take these decisions on their behalf.

The requirements for this will vary from state to state, and the laws of the specific state relating to this in terms of notarization and witnesses should be kept in mind while drafting it. It is possible to revoke this will as desired.

The will becomes effective either when it has been signed, or when the person is no longer in a condition to communicate his or her wishes.

The person making the will entrusts someone with making decisions when they are no longer able to do so through a durable power of attorney.

This will is invalid once the maker of the will passes away. However, under certain special circumstances, like organ donation, the agent is given a durable power of attorney.

Who Takes the Living Will? – People Involved

A living will is made by a person who wants to avoid certain complicated medical procedures when they are in a critical state of health. They appoint a person to carry out their last wishes. This person is known as ‘agent’ or ‘attorney-in-fact,’ and this agent is authorized through a durable power of attorney to take these decisions.

What is a Living Will

The will essentially carry out the last wishes of an individual who is suffering from a critical health condition. The will states that certain medical procedures used to revive a critically ill patient will not be used if the individual reaches a serious stage in terms of health. An agent is appointed to execute the last wishes when the person is unable to.

How to Make a Living Will?

When drafting this will, you will need to specify the medical care that can or cannot be given. The will should contain information about your decision regarding medical care to prolong life, food and water, and palliation.

The laws of the state need to be kept in mind when making this will. The will needs to be notarized and have witnessed as well.

Purpose of the Living Will – Why Do You Need It?

If you are affected by a critical illness at a certain stage of your life, then you will be subject to certain complex medical procedures and equipment like a ventilator to prolong your life.

When you are not in the condition to think clearly, usually, your family members take all steps to try and extend your life for as long as possible on emotional grounds.

You might, however, not wish to be put through all these life augmenting procedures and would like to die naturally. Unfortunately, when you are in a critical condition, you are no longer in a position to make any decisions regarding your health.

It is possible through such a will to express your desires regarding such medical treatment when you are mentally in a position to make decisions. You can specify the medical procedures that are acceptable to you and those that are not.

An agent or an attorney-in-fact is appointed who will make these decisions on your behalf when you are not in a position to do so.

The will also be shared with your family members so that they are aware of your wishes, and there is no dispute with the agent who is carrying them out.

Contents of the Living Will – Inclusions

A living will give you an idea of the contents of such wills.

Here are the contents of a standard will:

  • Name of the person who is making the legal will
  • Directions: To the primary care physician regarding the withdrawal of life-sustaining medical procedures meant to prolong life by a certain period in case of a critical illness. If any palliative procedures are required for comfort, those might be allowed
  • The procedures which are not to be performed are mentioned specifically, as well as the procedures which will be allowed
  • A declaration that the will is made in accordance with the laws of the state where the maker of the will resides
  • Signature of the declarant verifying that all information provided in this will is true and correct
  • The name of the agent who is appointed, including the communication details. The fact that a durable power of attorney has been granted to this agent authorizing him or her to act on behalf of the person making the will should be stated. The powers of the agent also need to be mentioned, including the circumstances under which the powers are to be exercised
  • The signature of two witnesses stating that the maker of the will is of sound mind and that the will was made in their presence
  • The effective date of the will
  • Whether any organ donation is to be made or not
  • In case the will-maker is a female, the primary care physician will be given the powers to take decisions on behalf of the mother and the child

How to Draft the Living Will

Points to Consider While Preparing the Agreement

This will can be drafted by consulting a will template. While drafting the Florida living will, the complete details of the principal must be entered first, and a declaration that includes what the agent must do if the principal suffers from any terminal condition.

In case of free-living will form Florida, your spouse cannot be a witness, and the witness cannot be the agent. Your healthcare surrogate cannot be your witness. The witness must be at least 18 years of age. There is no particular format for this will. An alternative agent can be appointed by the principal. These wills do not deal with the distribution of assets.

The will and power of attorney free forms can be found online and modified according to the needs of the principal.

In case of a living will Ohio, you would either require two witnesses or get the will be notarized. There are regulations regarding who is eligible to sign as witnesses, as well as who can be your attorney-in-act.

The principal must be of sound mind and not be coerced into making the will.

The laws of different states would be different with regard to the witness and agent. These laws should be followed, or the will would be regarded as invalid.

Negotiation Strategy

The principal in a will negotiate the permissible expenses connected with his or her treatment. He or she may also negotiate with the family members regarding his wishes and ensure that they understand and respect them. The principal may choose the medical procedures that he or she will or will not allow in the event of a critical health situation.

The services provided by the agent can also be negotiated with the principal.

[ Also Read: Medical Power of Attorney ]

Benefits & Drawbacks of the Living Will

The benefits are:

  • Protection of wishes of the principal: In the event, the principal is affected by some critical health problems, he or she can ensure that only certain medical procedures are allowed while others aren’t.
  • Appointing of an agent: The principal appoints an agent who will carry out the wishes of the principal and ensure that the treatment desired by the patient be given when the principal is at the last stage of his or her life
  • No family interference: The family of the principal cannot argue with, or take legal action against the agent, as he or she has been granted a durable power of attorney by the principal. 

The drawbacks are

  • The principal will not have to undergo the medical procedures decided by the immediate family. Despite the principal’s desire not to undergo specific medical treatment, they will have to bear it without a will.
  • I am postponing death: Medical equipment like the ventilator by the family to try and prolong the life of the principal against his or her wishes. 
  • Poor quality of life: The principal will have a very poor quality of life as he or she cannot protest against the treatment and will continue to suffer

What Happens In Case of Violation?

In case of violation of a will, the agent has the power to take action against the medical practitioners and/or family members who act against the wishes of the principal.

The agent can take the medical practitioners to court for not abiding by the wishes of the principal by putting them on life support to try and prolong their life.

If the principal has mentioned it in the will, there will be monetary compensation claimed from the hospital and the medical practitioner for breach of the specific clauses in the will(1).

The agent could warn the hospital before the start of the procedure, but if the hospital goes ahead with the procedure, the agent can take legal action against it.

If a family member tries to force the agent to make the principal undergo a certain medical procedure, the agent has been given the power to seek a legal remedy.

If the agent violates the wishes of the principal, then the family members can take the agent to court.

Under specific performance, the agent is bound by the will and has to carry out all of his or her desires.

The will form part of an estate plan, and it is an important document as it honors the wishes of terminally ill patients. 

Normally, the principal’s family put the principal on life support. The principal, however, might not want this to happen.

With such wills, the principal can appoint an agent to take care of carrying out their last wishes. The agent would be given certain powers through a durable power of attorney so that after the death of the principal, there are empowered to act on behalf of the principal.

The principle states the medical procedure or treatment that they would like, and their choice is respected with this will.

The will should follow the laws of the state; otherwise, it will be considered null and void. The medical practitioners and family members should be apprised of the will so that there are no disputes.