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The Importance of a Living Will

(We like to call this a “Directive to Physicians.”)

Older adults are more likely than younger adults to think about their preferences for medical care if they were to become incapacitated through a stroke, dementia, or other condition. But the fact is that an accident or illness can cause these conditions at any age, so you need to be prepared with the right legal documents as soon as you turn 18.

One important document to have in Virginia is a living will. This document informs doctors about the care you do or do not want to receive to prolong your life if you are in a permanent vegetative state or have a terminal condition with a low quality of life and no chance of recovery. A living will not only makes your wishes known to your family and loved ones but also makes those wishes legally enforceable.

What Is a Living Will?

A living will specifies the particular types of medical treatment you wish to receive if you suffer an injury or medical condition that renders you unable to make your own decisions or communicate your wishes. A persistent vegetative state, Alzheimer’s, terminal illness, or any other condition that prevents you from making or carrying out decisions would qualify you as “incapacitated” in Virginia.

Designing a living will give you peace of mind because you are informing your family members and medical professionals of your choices beforehand so that they will not have to agonize over trying to determine what you want. If you are in a permanent vegetative state or have a terminal condition with no hope of recovery and low quality of life, your living will can explain whether you would want treatment such as:

  • Life-prolonging procedures
  • Pain medication and palliative care
  • Resuscitation/CPR
  • Feeding tubes and IV hydration

This document is customized to your wishes. For instance, you might specify that you would want to continue receiving hydration but not nutrition.

Is a Living Will the Same as an Advance Medical Directive?

Sometimes a living will is contained within an advance medical directive, but in our firm, we use a separate document. Your advance medical directive appoints a person you trust to make medical decisions for you are unable to make them for yourself. A living will/directive to physicians is your direct instruction to  your medical professionals and loved ones what life-prolonging care you would and would not want if you were in a permanent vegetative state or have a terminal condition with no hope of recovery and low quality of life. So an advance medical directive authorizes another to speak for you while a living will enables you to speak for yourself, albeit in advance.

We recommend that our clients have an advance medical directive, a living will, and a HIPAA waiver to authorize sharing of medical information.  Each of these documents accomplishes a different purpose so we keep them separate, but some firms do put all of them together in one document.

How Your Living Will and Advance Medical Directive Work Together

Your advance medical directive, also known as a health care power of attorney, gives your agent authority to make treatment decisions for you. Through this document, you can empower your healthcare agent to make a variety of decisions, including end-of-life decisions. But this can place a tremendous burden on the person you have chosen to serve as your agent.

Having your end-of-life preferences described in a living will provides reassurance for your loved ones and your healthcare agent and it reinforces the authority of your agent. The living will allows your healthcare agents to feel more confident knowing that they are taking the actions that you would want in a particular situation.

Creating a Living Will/Directive for Physicians

To create a living will, you must sign your document in front of two witnesses. The living will/directive to physicians we draft for you would only be operative if none of your healthcare agents are available to make end-of-life decisions for you, and you are incapacitated and cannot make decisions for yourself. This means that in a situation where the medical directive would otherwise have come into play,  and your healthcare agent is actually available, a person you trust and who knows you well would be in charge of your end of life medical decisions, using all the available information, together with your living will, to make those end of life decisions. This is far superior to simply relying on a piece of paper that was written in the past, attempting to predict what you would do in a hypothetical future situation.

Although Virginia law usually requires a living will to be set in writing to be enforceable, there is an exception. Terminally ill patients may dictate an oral living will to their doctor in front of two witnesses.

Contact an Estate Planning Attorney in Central Virginia

A living will/directive to physicians is an important part of your estate plan. If you need a living will or other estate planning services in Central Virginia, contact Commonwealth Life & Legacy Counsel. In Zion Crossroads and surrounding areas, call 434-589-2958, and in Powhatan or surrounding areas, call 804-598-1348 or complete the firm’s online contact form to schedule a consultation.