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Living Will – Do I Need One?

People ask elder law attorneys what is the most important document that a person should have. While there may be some debate, it is clear that a living will may be the most important quality of life document that a person can have.

What is a Living Will?

In Kansas it is called a Declaration. K.S.A. 65-28,103. Some refer to it as an Advance Directive. What ever you call it, it is a document which states, in essence, that if the declarant’s treating physician and one other physician determine that the declarant has an incurable disease, injury, or illness that is terminable, and that death will occur whether or not life-sustaining procedures are utilized, and where the application of life-sustaining procedures would only serve to artificially prolong the dying process, the declarant directs that the procedures be withheld or withdrawn, and that the declarant be allowed to die naturally with only the administration of medication or performance of medical procedures deemed necessary to provide comforting care. The document must be personally signed by the declarant and witnessed by two other individuals who are not related by blood or marriage or entitled to any portion of the estate of the declarant or otherwise directly or financially responsible for the declarant’s medical care. As an option to having two witnesses, the documents may be notarized by an independent notary.

It is a long definition that may be confusing.

In substance, a Living Will or Declaration is a directive about how you wish to be medically treated, if you are unable to express yourself in the future.

What is needed in order to have an effective Living Will?

The law in this area has been evolving since the 1960’s and it has been recently in the news in this century with the Terri Schiavo case. This is the case in which there was a fight between the husband of Terri Schiavo and the parents of Terri Schiavo as to what her wishes were in relation to certain life sustaining procedures that were ongoing. Similar questions arose in the Nancy Cruzan case. The cases have taught us that we need to do the following in order to have an effective Living Will.

The first lesson is that you need a written Living Will.

Whether you are 18 or 118, you need to express in writing what your desires are regarding the quality of the end of your life. In a Gallup Pole, it was found that seventy percent (70%) of the people surveyed approved of Advanced Directives (Living Wills), but only twenty percent (20%) actually had the document. Similarly, only forty-seven percent (47%) of the people over 50 years of age surveyed in a separate AARP survey said that they had a Living Will.

You need to define in your Living Will what qualities of life are unacceptable to you.

You need to be as specific as you can in describing medical circumstances in which you would not desire to be left in indefinitely. In the last year, our office has made significant modifications to the standard “Declaration” used in Kansas. Some of the issues that we want a client to address in the Living Will focus on what types of situations are unacceptable to them. As an example, is it unacceptable to be in a chronic coma or in a persistent vegetative state; unable to communicate your needs; unable to recognize your family members or friends; or at total or near dependency on others for care?

We also want our clients to think about what type of care they want to authorize if any of the conditions mentioned above exist: Does the person want to continue food and water by tube or intravenously, or does the person want to discontinue such food and water by tube or intravenously?

We also want our clients to consider what treatments they do NOT want to occur under any circumstances, if they are terminal; such as cardiopulmonary resuscitation (CPR), ventilation, feeding tube, dialysis, etc.

The second lesson of Schiavo and other cases is to have meaningful discussions with your family, doctor, minister, and even your lawyer. In our office, we call it having “the talk” about your end of life decisions. Regardless of your age, have discussions with your family about what type of health condition would not be acceptable to you. Specifically talk about a feeding tube. There is debate over whether or not a feeding tube is medical care; address the issue with those who are important to you.

The National Hospice Foundation survey of persons aged 45 and older found that Americans are more willing to talk to their children about safe sex and drugs than to discuss end-of-live care with their terminally ill parents.

By having “the talk” with your family, doctor, minister and lawyer, you can greatly eliminate the possibility of a family dispute or even litigation. The courts struggle to find the intent and desires of incapacitated persons.

“Legal documents that express our wishes are not enough to prepare us for our final days. We must talk honestly with our loved ones, our clergy and our doctors and nurses about the choices we would make if confronted with a chronic or terminal illness.” Rosalynn Carter

While it is imperative to have a Living Will and an accompanying Power of Attorney, the discussion with the family cannot be overemphasized.


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