I actually think it’s a good idea to have a living will. I’d encourage everybody to get one. I have one; Michelle has one. And we hope we don’t have to use it for a long time, but I think it’s something that is sensible. – Barack Obama, 2009
One of the most confusing services that we offer at USLegalWills.com should be the simplest. But in the US there are countless terms being used for very similar things, and we will try to decipher these terms in this article on the Living Will. Terminology does change though, so it is possible that this article can become out of date. Please fee free to add corrections or updates in the comments below.
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The Living Will
A living will is a written, legal document that spells out medical treatments you would and would not want to be used to keep you alive, as well as other decisions such as pain management or organ donation.
A Living Will is much more than a Do Not Resuscitate request. A living will includes your individual preferences on heroic measures at end-of-life care, the use of feeding tubes, whether you would accept mechanical ventilation, or even dialysis. You are effectively expressing these decisions ahead of time because you will not be in a position to speak for yourself. That helps to guide your physician’s decisions if you are ever critically ill and have a low chance of recovery.
A Living Will created using the service at USLegalWills.com includes instructions covering:
- Resuscitation – This specifically deals with the situation when your heart has stopped beating. There are a number of types of treatments that can be applied in this situation including cardiopulmonary resuscitation (CPR) or electric shocks in order to stimulate the heart.
- Mechanical ventilation – If you have stopped breathing, but your heart is still beating, your Living Will can describe when and for how long your would want to be placed on a mechanical ventilator to assist with your breathing
- Tube feeding – In these situations, the body is nourished through tube feeding either via a tube in the stomach, or intravenously. Your Living Will can describe under which circumstances and for how long you would accept tube feeding.
- Dialysis – With a loss of kidney function your body would need dialysis to remove waste and manage fluid levels in your body. Again, your Living Will would allow you to express the circumstances and for how long you would accept dialysis.
- Antibiotics or antiviral – Your Living Will allows you to specify the level at which you wish to receive medication. If you were nearing the end of your life, in a terminal condition with no chance of recovery, would you want infections to still be treated aggressively, or would you prefer a natural course of events to unfold.
- Comfort care (palliative care) – The focus for most Living Wills is the description of the kinds of comfort care and pain management that you would want to receive. The Living Will allows you to express your wishes for dying at home, receiving pain medications, and avoiding invasive treatment.
- Organ and tissue donations – Your living Will can describe your wishes for transplantation and organ donation. This may include the request to continue life-sustaining treatment until your donated organs can be removed.
- Donating your body – if you are aware of a medical institute or university that receives whole body donations, you can express in your Living Will that you wish your body to be donated for the good of medical science and research.
The Do Not Resuscitate Order
A Living Will is written by you as a pro-active expression of your desires for terminal care. A DNR on the other hand, is a medical order written by a physician based on instructions that may have been included in your Living Will or Advance Directive. The DNR directs medical staff to not start chest compressions or other cardiac drugs on your heart when your heart has already stopped beating. It also directs staff to not put you on artificial ventilation when you have stopped breathing. In the United States, an advance directive or living will is not sufficient to insure that you are treated under the DNR protocol, even if it is your wish, as only the DNR order signed by a physician is regarded as a legally binding document.
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There were some reservations regarding the terminology of “Do Not Resuscitate” as it implies that resuscitation is a likely outcome if attempted, which in most cases would be incorrect. So in 2005 the American Heart Association changed their official terminology from the established “do not resuscitate (DNR)” to “do not attempt resuscitation (DNAR)”.
The DNAR is more grammatically correct, even though most people still think of the medical order as a DNR (and even on the American Heart Institute website, there is more frequent reference to DNR than there is to DNAR).
Some institutes are now moving away from any reference to resuscitation and are starting to use “Allow natural death (AND)” to more accurately reflect what is likely to happen. This terminology focuses on what will be done, rather than what will not be done.
The reality is, many hospitals still use DNR, some use DNAR, and a few use AND, but to the layperson they are all effectively the same thing.
Unfortunately, the medical authorities have also created other terms like a MOST (Medical Order for Scope Treatment), POST (Physician Orders for Scope of Treatment) or POLST (Physician Orders for Life-Sustaining Treatment), which includes DNAR information as well as additional information on life sustaining treatments. These may be very different documents to people working on the medical profession, but to the layperson they amount to the same thing.
Healthcare Power of Attorney
The Healthcare Power of Attorney is usually used together with a Living Will. Where the Living Will describes the type of care that you wish to receive, the Healthcare Power of Attorney allows you to name a proxy to speak on your behalf. Oftentimes physicians turn to family members to make decisions on certain medical procedures, only for the family members to not agree. The most notable case of this happening was in the care of Terri Schiavo, where the family dispute lasted 15 years from 1990 to 2005 and was escalated to the Supreme Court of the United States with intervention from the then President George W. Bush who signed legislation to keep her alive. The whole situation could have been avoided with a Living Will and Healthcare Power of Attorney.
Advance Directives
At USLegalWills.com we use the term “Advance Directives” to cover a Living Will and a Healthcare Power of Attorney. It is a more generic term for expressing your directions for care ahead of time.
Financial Power of Attorney
A Healthcare Power of Attorney has absolutely no control over your business or financial affairs – they only speak on your behalf for medical decisions. If you are incapacitated and need somebody to take care of your financial dealings, you need a Financial Power of Attorney. This document grants specific or general powers to an individual to manage your money, pay bills, buy and sell assets and other business dealings. A healthcare and financial power of attorney cannot be combined into a single document, they are very different and fulfil very different needs.
Last Will and Testament
Your Advance Directives including your Living Will, and Healthcare Power of Attorney are immediately cancelled as soon as you die, as is your Financial Power of Attorney. At this point, your Last Will and Testament comes into effect and the Executor named in your Will takes control of your affairs. It is a little unfortunate that your Living Will even uses the term “Will”, the documents are completely different and the shared terminology is a source of confusion to many.
Generally your “complete estate plan” includes a Last Will and Testament, Living Will, Healthcare Power of Attorney and Financial Power of Attorney. All of these documents are available to USLegalWills.com.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets, and has contributed to articles in The New York Times, NY Metro Parents, U.S. News & World Report, and other leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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