A Coda to the Trilogy: The Role of the Living Will

In the last two posts, we looked at the Durable Power of Attorney and the Health Care Power of Attorney. In this last of the trilogy, we will look at the Living Will. Together, these three documents are often referred to as the client’s “ancillary documents,” in the sense that they supplement or provide support to the entire estate plan. For most clients, a Will or a Trust are documents that determine what happens to their assets after they pass away. The ancillary documents, by contrast, focus on the client while the client is alive.

The Purpose

“Living Will” is a confusing name. Clients often confuse it with their “Will.” But the Living Will is very different than the Will, and it is rather unique within the bundle of documents we prepare for clients.

The purpose of the Living Will is for the client to give directions to medical providers about whether or not to continue life support in three situations at the end of life. Those three situations are, in laymen’s terms:
1. The client has an irreversible condition and is going to pass away soon. Under that scenario, the client can direct the doctors to remove life support to avoid drawing out their death and allow them to die naturally.
2. The client has lost consciousness is not going to regain it. In other words, the client is in a permanent vegetative state. Under that scenario, the client can direct the doctors to remove life support and allow them to pass away.
3. The client has severe or advanced dementia. This does not mean mild or moderate dementia. It means dementia that is so advanced that the client needs to be on life support (for example, the client has lost the ability to swallow due to physical deterioration caused by the disease and needs a feeding tube).

Do I Appoint Someone?

As we saw in the previous posts, under the Durable Power of Attorney and the Health Care Power of Attorney the client appoints someone to make decisions for the client as to the finances (the Durable Power of Attorney) or their health (the Health Care Power of Attorney).

What makes Living Will unique within the trilogy of documents is that the client is not appointing someone to make decisions for the client. Rather, the client is directly speaking to the medical provider and telling him or her what to do at end of life. The way we often frame this for clients is that the client is not putting someone in the uncomfortable position of needing to tell a doctor to remove the client’s life support. The client is telling the doctor to do that.

As with most things, there is an exception to this. The client can give the person they appointed under the Health Care Power of Attorney the authority to override the client’s instructions in the Living Will. This has been more frequent during COVID given some client’s concerns about what is known and not known about the disease.

There are a few other things the client will consider when completing the Living Will with an attorney at Strauss Attorneys. For example, whether to direct the doctors to provide nutrition or hydration during this time.

All of these decisions are delicate and need to be handled with care. The attorneys at Strauss Attorneys draw on a wealth of client interaction and dealing with these issues daily. And we stand ready to help you navigate the issues as well.