Philadelphia PA Living Will Attorney

sick mom and daughterPhiladelphia Estate Planning Attorney

A Living Will is a document drafted by your estate planning attorney in Philadelphia that sets forth your medical preferences upon incompetency. A living will goes into effect when, for example, two doctors declare you are incompetent to manage your own medical affairs, unconscious and terminally ill, or brain dead. It sets out certain advanced directives and declares a healthcare surrogate to make decisions on your behalf. This is essential to your estate plan to ensure you receive only the medical care you desire – no more and no less.

Advanced directives state your preferences for certain types of treatments. There is a misperception that living wills are only meant if you would like to “pull the plug” early. While many people will not desire to be kept alive on breathing and feeding tubes if unconscious and terminally ill, the advanced directives may provide instructions on whether or not to keep you alive as much as medically and financially possible. These advanced directives provide certainty of what your preferences would be when you cannot communicate them.

Your Living Will can also set forth a health care surrogate (and substitutes if the designated surrogate cannot serve) to make medical decisions on your behalf. This surrogate will make decisions that, as frequently the case, the advanced directives in the Living Will did not contemplate or decisions that were specifically vested in the surrogate to make depending on the circumstances. Thus, a Living Will is an important document that provides a level of certainty that your body will be cared properly if you become unconscious, brain dead, or mentally incompetent.

Specific Benefits of a Living Will

A. Have Your Wishes Followed
The point of estate planning is to document your wishes so they may be carried out when you physically and mentally cannot express them. A Living Will is as important as a will, if not more important in some cases, as this documents your wishes while you are alive and how you should be treated. This makes sure you will not be kept in a painful vegetative state for 5 to 10 years because a relative cannot stomach pulling the plug but it can also ensure that you are not removed from life support too early if you want to be kept alive for the possibility of a future medical advancement that may save you. A Living Will is important to make sure your wishes are followed for how you are treated.

B. Designate the Proper Surrogate to Make Decisions
In a Living Will it is important to name as your health care surrogate the person who is best capable of making health care decisions on your behalf. In the absence of a Living Will, the time it takes to determine who can make medical decisions on your behalf (a healthcare proxy) may substantially change the possible outcome of your condition, and the statutory choice of proxy may not be the person you would have chosen. In the absence of a surrogate named by you, a person called a health care proxy is chosen based on state law. Choice of a proxy varies among states and each doctor/hospital may respond differently based on the state and factual situation. Examples of different decision schemes are:

  • A statutory pecking order for selecting a proxy of a spouse, then adult children, then parents, adult siblings, adult grandchildren, a close friend, etc.
  • A doctor may require a consensus of all family members;
  • A doctor picks an appropriate proxy after interviewing a statutory list of eligible people.
  • A doctor must do all in her power to keep you alive; and
  • A court order is required to declare a proxy (especially if loved ones disagree on care).

The process of choosing a proxy may take longer than the window from which a decision needs to be made. To determine the proxy, you first need to determine what state law applies, what the laws are of that state, and possibly go through a process to select the proxy through court. If you could be saved by an experimental elective surgery if completed within three hours of being admitted to the hospital, you may not have a proxy to make such an elective decision until long after this three hour window has expired.

Further, the statutory proxy may not be the ideal person. The proxy may not share the same preferences as you or may be the type of person to freeze up on such major decisions. The statutory proxy could be an estranged child or sibling that you have not spoken with in years or who will make a decision to receive an inheritance from you sooner by pulling the plug. The easiest way to alleviate these concerns is to include a Living Will in your estate planning documents and set forth the health care surrogate.

C. Reduce Guilt/Anger of Surviving Parties
A Living Will is not only essential in your estate plan to ensure you are treated properly, but it is essential to reducing the burden on your loved ones by avoiding potential anger, fights, and guilt. Many families have major battles over what treatment is proper for their incapacitated loved one. This creates anger towards the proxy or surrogate that pulled the plug or kept you alive in a vegetative state for many years and depleted your estate. Some surrogates or proxies may be reluctant to pull the plug out of guilt or have guilt or regret for pulling the plug. Also, family members may be distraught if an estranged child is selected as a proxy under statutory law and pulls the plug early to receive an inheritance sooner.

A Living Will reduces this anger and guilt of loved ones. If you clearly state your medical preferences, this reduces much of the anger and guilt involved. Family members are less likely to be angry with a surrogate that is simply following your written directives as opposed to deciding to discontinue life support on their own. Further, the surrogate himself/herself will not have the guilt of whether he/she did the right thing. Additionally, by choosing a surrogate, you avoid drawn out family battles over who makes the decision and what treatment should be applied. These battles can permanently destroy family ties. A Living Will is not only an important estate planning tool for yourself, but it is also important to put your family members and relatives at ease.

D. Reduce Ambiguity and Anxiety about Medical Care Decisions
Following up with reducing guilt and anger, a Living Will in your estate plan will reduce general ambiguity and anxiety. You provide certainty that you will be cared for according to your own preferences. You can ensure the surrogate is willing to take responsibility for your medical decision and can weigh your options when fully competent. Your spouse or children will not have to worry about possibly family wars about what treatment to provide (or not provide). Again, a Living Will is both essential for yourself and your family to reduce overall ambiguity and anxiety.

E. Avoid Depleting Your Estate
A Living Will is also an important estate planning tool to avoid depleting your estate with end of life medical expenses. Remaining in a vegetative state for even three to five months will significantly reduce your asset pool that would pass to your loved ones. Furthermore, the funds may arrive too late for your child who could have used the inheritance to pay off college loans, purchase a new home, pay for a surgery your grandchild needed or provide support when looking for a job in a recession. Thus, a Living Will helps ensure your assets are not depleted and reach your family members when needed rather than expending those assets on pointless medical care.

F. Avoiding Costly and Embarrassing Legal Battles
In addition, a Living Will will save you and your family the cost of a long drawn out legal battle over who will be designated the decision maker and what the proper care is. In the absence of a Living Will, family members are more inclined to bring law suits to enjoin certain medical treatments or remove a statutorily determined decision maker. A Living Will provides clear evidence to settle disputes early or even prevent them from starting. This will reduce the financial cost of legal battles and family embarrassment as your family’s “dirty laundry” will be aired in court if a drawn out proceeding is necessary.

G. Prepare for the Unexpected
Last, while you may currently be young, healthy, and have a strong family medical history, tragedy can happen at any moment. There are stories of healthy and strong 24 year olds being held in a vegetative state for many years after a severe car accident or botched up surgery because a parent would not pull the plug. In addition, it is better to make these decisions while you have full capacity and can truly weigh your options. If not for yourself, it is important to take the one simple step to add a Living Will to your estate plan to avoid the potential years of guilt, anger, anxiety, battles and embarrassment for your loved ones.

Conclusion
While a Living Will may be something easily overlooked in an estate plan, it is as important as a testamentary will to ensure your wishes are fulfilled when you cannot speak for yourself as to your medical care. More importantly, it makes it easier on your loved ones who are already dealing with the difficult emotional situation of your sudden incapacity and the loss of your presence in their lives. It is important to talk with your Philadelphia estate planning attorney today to draft a Living Will, if not for your sake, then for the sake of your family and friends.