Living Wills

A recently published study from a mid-western university came to the conclusion that living wills will fail to accomplish their objectives and, in fact, usually make matters worse. According to the study, in documents where patients try to set forth their desires for medical treatment in the event of their disability fail to achieve their intended purpose. In a press release by the university which conducted the study, it was recommended that patients use a health care power of attorney authorizing a relative or loved one to make decisions for them.

A well known attorney in the pacific northwest generally agrees with the study, and stated: "I find that, in practice, either instructions from a Health Care Power of Attorney, or instructions from the immediate family are grounds which the doctor/hospital/nursing home will carry out such wishes, and that the document itself is never relied upon to make life and death decisions.

A doctor with a practice in a southern state took issue with some of the study. "To say that Living Wills fail because most people don’t have them isn’t even logical. That’s like saying Bypass Surgery is useless because most people don’t have Bypass Surgery. It’s about what happens with the people who DO have it that counts! Likewise for the 4th point, to say that "Living Wills fail" because people don’t do WHAT THEY’RE SUPPOSED TO DO with them isn’t the fault of the document. Living Wills can work fine, just make sure you CARRY IT WITH YOU, or make it ACCESSIBLE when needed."

The legal issues and procedures are highly dependent on state law, practitioners agree. According to a MASSACHUSETTS LAWYER "Living Wills have no legal validity in MA, only Health Care Proxies (Powers of Attorney) must be followed. We do living wills only as a guideline to the Health Care Agent if the client wants one." A similar rule applies in New York, according to another MESSAGE.

A CA attorney thinks the Hastings Center study may include some over- generalizations. Problems that result when the document is not available when needed apply equally to health care powers of attorneys, she point out. She writes, "I generally discourage the absolute statements (declining specific types of health care) except when a client feels very strongly or has a short life expectancy..." She has found health care directives useful on several occasions: "I have used the statements regarding care (living will info) to get a conservator to take action following the client’s wishes; to resolve disputes about medical decisions between family members and to nudge recalcitrant agents into action. I don’t believe any of those clients would have said that living wills don’t work."

An OK lawyer thinks, "Health Care Powers of Attorney are great when used in conjunction with Living Wills, but not in lieu thereof."

A CA attorney recounts a personal experience with his father’s advance directive. He writes: "it is my opinion that, more important than the Advanced Health Care Directive itself, is the discussion of one’s wishes with family so family doesn’t have to second guess." Another doctor agrees.

Commencing with a related discussion, a MA attorney asks about the use of a "Five Wishes’ form, which is completed by the client to express wishes regarding health care. A MI doctor sometimes refers to the Five Wishes form in a health care power of attorney. A VA lawyer has used it in a similar way. "It’s an excellent document", writes an AL lawyer.

A MT attorney, however, sees the Five Wishes document as "yet another fad...the 5 wishes philosophy is OK in concept, but not practical, in my opinion.