What is a Living Will?

A living will is the term most people use to describe an advance medical directive. In Virginia, an advance medical directive is the name given to the instrument that allows an agent to make decisions for you if you become incapacitated. The terminology is confusing because an advance medical directive can contain both a living will and a directive (health care power of attorney). These instruments are governed by he Health Care Decisions Act and must contain very specific language in order for them to be enforceable.

A living will (whether standalone or part or an advance medical directive) tells medical professionals the kind of care a person wants or does not want in the event that:

1. They are terminally ill
2. They cannot understand or communicate what they want or do not want in terms of medical care and
3. Their agent cannot be contacted

Most living wills say something to the effect that under these circumstances a person does not want to be kept alive merely for the purpose of extending their life. They direct that care can be withheld even if doing so might mean that someone could die more quickly. In some cases, specific types of treatments or medicines can be specified in the living will.

Most people are not aware that their spouse or their children cannot automatically speak for them in the event they become incapacitated. Although certain persons have the ability to get this authority, to do so without a living will means that they must petition a court. This is expensive and stressful. Advance directives can save a great deal of time and uncertainty and are an essential tool for nearly every family

Don’t use a generic form

The advance directive if written correctly will last for many, many years. Although it is possible to use fill-in-the blank directives that are sometimes handed out at hospitals or doctors offices, these are not recommended. This is because most of these forms are specific to a particular facility. Many times when an advance directive is needed a patient has been or is in the process of being transferred somewhere for specialty care. In such instances, even if the illness is temporary (not end of life) the patient cannot fill out a new facility form because of the illness or injury. For this reason it is important to have a general, broadly applicable document ready.

There are two other points of interest about living wills. First, many states now have reciprocity statutes that allow for the use of living wills that were validly executed in another jurisdiction. This helps to reduce the chance that someone who is traveling is not able to use a living will if they are away from their home state. The second is that Virginia and many other states now have official living will registries. This means that if the advance directive is executed in keeping with certain statutory requirements, it can be added to a secure official registry that is searchable by name. In this way, if someone is away from home and something happens not only is their living will available to doctors and hospitals, but contact information for their agents and family members can also be accessed. These two developments solve some of the largest problems under he old rules.

There has never been a better time to create or update an advance medical directive (living will) — one of the best investments you can make for your family.