Ask an Attorney: The importance of drafting a Living Will

Q: What is a Living Will?

A: A Living Will is a legal document in which you give instructions regarding your health care.

Generally, a Living Will comes into effect in circumstances where your doctors have decided that you are in an irreversible coma or a persistent vegetative state, and that you cannot be expected to return to full consciousness.

Under those circumstances, a Living Will may direct that you do not wish to receive artificially administered foods and fluids, and that you do not want cardiopulmonary resuscitation and other life-sustaining procedures that serve only to artificially prolong the dying process.

In other words, the Living Will can set forth your wishes to your doctors that you do not wish to be kept alive under circumstances where you are no longer able to function as a person. Nobody wants to have to be the one to tell the doctors to stop doing absolutely everything they can to keep a loved one alive. By setting forth your intentions in such a document, you take this difficult decision out of the hands of the people who love you.

You may remember the case of Florida resident Terri Schiavo. Put very basically, there were two main legal issues in Terri’s case. The first was whether or not she was in fact in a persistent vegetative state, one from which she had no chance of recovery. The second involved a determination of what Terri would have wanted done if she were in a persistent vegetative state.

As to the first issue, the court in Florida ruled that Terri was in a permanent, persistent vegetative state. There were many appeals in the case, based, at least in part, upon attempts to dispute this ruling. It should be noted that these legal procedures could have occurred even if Terri had had a Living Will.

As to the second issue, Terri’s husband argued to the court that Terri would have wanted her feeding tube removed. Terri’s parents disagreed, and presented their position to the court. In the end, the court found that Terri would have wanted her feeding tube removed. If Terri had had a Living Will setting forth her wishes, the document would have controlled, and this legal issue probably would have been moot.

Keep in mind that a Living Will does not have to state that you do not want life prolonging treatment; it could also state the opposite, that you do wish to be kept alive as long as is possible.

A Living Will, done in conjunction with other estate planning devices, can help to give assurances that your wishes will be known and followed upon your death or incapacity.

Andy Heidman is a Southern Arizona lawyer. Contact him at his Green Valley office at 625-4404. This column appears monthly in this newspaper as a public service. It is not intended as legal advice, and will address only general propositions. If you have a question about a matter which affects you, you should contact an attorney.