We ALL know the cost of medical care especially in the “last mile”: that last 6-12 months of life when medical decisions can not only affect health outcomes but can also greatly affect the assets of the sick as well as their heirs.
Welcome to the world of the Living Will. Simply put, the Living Will can be the most important estate planning document you incorporate into your overall estate plan. Why? Because if you don’t have one your medical provider (hospital, doctor, etc) may make decisions for you involving medical care that you neither need nor want.
The examples are many but suffice it to say that every extra week of hospitalization that you endure in the “last mile” could cost your estate $25,000 or more in medical expenses that may or may not be covered by your health insurance carrier.
Multiply that $25,000 weekly cost by four weeks (average stay) and you can see the tremendous risk of not have a Living Will.
Why? Because your Living Will can outline the types of care you want when there is little or no hope of resuscitation or quality of life. If your Living Will is properly drafted, you and your heirs will be protected from protracted medical care that is not wanted or desired.
The Living Will has become fairly synonymous with the Health Care Directive. Both are very good. Sometimes the Health Care Directive is more explicit. Regardless of which document you choose to advise your care provider, make sure your decisions regarding the end of days medical care are explicit and well know by your family and your doctors/hospitals.
The living will is the oldest form of advance directive. It was first proposed by an Illinois attorney, Luis Kutner, in a law journal in 1969. Kutner drew from existing estate law, by which an individual can control property affairs after death (i.e., when no longer available to speak for himself or herself) and devised a way for an individual to express their health care desires when no longer able to express current healthcare wishes. Because this form of “will” was to be used while an individual was still alive (but no longer able to make decisions) it was dubbed the “living will”. In the U.S., The Patient Self-Determination Act (PSDA) went into effect in December 1991, and required healthcare providers (primarily hospitals, nursing homes and home health agencies) to give patients information about their rights to make advance directives under state law.
A living will usually provides specific directives about the course of treatment healthcare providers and caregivers are to follow. In some cases a living will may forbid the use of various kinds of burdensome medical treatment. It may also be used to express wishes about the use or foregoing of food and water, if supplied via tubes or other medical devices. The living will is used only if the individual has become unable to give informed consent or refusal due to incapacity. A living will can be very specific or very general. An example of a statement sometimes found in a living will is: “If I suffer an incurable, irreversible illness, disease, or condition and my attending physician determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued.”
More specific living wills may include information regarding an individual’s desire for such services such as analgesia (pain relief), antibiotics, hydration, feeding, and the use of ventilators or cardiopulmonary resuscitation. However, studies have also shown that adults are more likely to complete these documents if they are written in everyday language and less focused on technical treatments.
However, by the late 1980s, public advocacy groups became aware that many people remained unaware of advance directives and even fewer actually completed them. In part, this was seen as a failure of health care providers and medical organizations to promote and support the use of these documents. The public’s response was to press for further legislative support. The most recent result was the Patient Self-Determination Act of 1990, which attempted to address this awareness problem by requiring health care institutions to better promote and support the use of advance directives.
Living wills proved to be very popular, and by 2007, 41% of Americans had completed a living will. In response to public needs, state legislatures soon passed laws in support of living wills in virtually every state in the union.
However, as living wills began to be better recognized, key deficits were soon discovered. Most living wills tended to be limited in scope and often failed to fully address presenting problems and needs. Further, many individuals wrote out their wishes in ways that might conflict with quality medical practice. Ultimately, it was determined that a living will alone might be insufficient to address many important health care decisions. This led to the development of what some have called “second generation” advance directives – the “health care proxy appointment” or “medical power of attorney.”
Living wills also reflect a moment in time, and may therefore need regular updating to ensure that the correct course of action can be chosen.
- Kutner, Luis (1969). “Due Process of Euthanasia: The Living Will, a Proposal”. Indiana Law Journal. 44 (4): 534–554. Retrieved 22 March 2018.
- ^Alexander G.J. (1991). “Time for a new law on health care advance directives”. Hastings Center Law Journal. 42 (3): 755–778.
- ^Patient Self-Determination Act U.S.C.A. 1395cc & 1396a, 4206-4207, 4751, Omnibus Budget Reconciliation Act of 1990, P.L:.b 101-508 (101ST Cong. 2nd Sess. Nov. 5, 1990) (West Supp., 1991).
- ^Docker, C. Advance Directives/Living Wills in: McLean S.A.M., Contemporary Issues in Law, Medicine and Ethics,” Dartmouth 1996:182.
- ^Tokar, Steve. “Patients Prefer Simplified Advance Directive over Standard Form – UCSF Today”. Pub.ucsf.edu. Archived from the original on 2009-02-07. Retrieved 2010-06-23.
- ^Damato AN (1993). “Advance Directives for the Elderly: A Survey”. New Jersey Medicine. 90 (3): 215–220.
- ^Anthony, J. Your aging parents: document their wishes. American Health. May 1995. pp. 58-61, 109.
- ^Cugliari A, Miller T, Sobal J (1995). “Factors promoting completion of advance directives in the hospital”. Archives of Internal Medicine. 155 (9): 1893–1898. doi:1001/archinte.155.17.1893.
- ^Johnston SC; et al. (1995). “The discussion about advance directives: patient and physician opinions regarding when and how it should be conducted”. Archives of Internal Medicine. 155(10): 1025–1030. doi:1001/archinte.155.10.1025.
- ^Omnibus Reconciliation Act of 1990[including amendments commonly known as The Patient Self-Determination Act]. Sections 4206 and 4751, P.L. 101-508. Introduced as S. 1766 by Senators Danforth and Moynihan, and HR 5067 by Congressman Sander Levin. Signed by the President on November 5, 1990; effective beginning December 1, 1991.
- ^ Jump up to:abAmerican Bar Association. Patient Self-Determination Act: State Law Guide. American Bar Association Commission on Legal Problems of The Elder. August 1991.
- ^Omnibus Reconciliation Act of 1990.
- ^Charmaine Jones, With living wills gaining in popularity, push grows for more extensive directive, Crain’s Cleveland Business,August 20, 2007.
- ^ Jump up to:abc Annas GJ (1991). “The Health Care Proxy and the Living Will”. New England Journal of Medicine. 324 (17): 1210–1213. doi:1056/nejm199104253241711.
- ^Hashimoto DM (1983). “A structural analysis of the physician-patient relationship in no-code decision-making”. Yale Law Journal. 93(2): 362–383. doi:2307/796311. JSTOR 796311.
- ^Hastings Center. Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying: a report by the Hastings Center.Briarcliff Manor, NY: Indiana University Press. 1987.
- ^Campbell ML (19
- 95). “Interpretation of an ambiguous advance directive”. Dimensions of Critical Care Nursing. 14(5): 226–235. doi:1097/00003465-199509000-00001.
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