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Healthcare Directives: Preventing Serious Legal Proceedings

The Living Will - A Sample

You might wish to open a sample of a Living Will in another window to follow along with this discussion.
This document is not designed to be conclusive for use in your state, but it is designed to serve as an illustrative teaching tool, so that you can learn more about the preparation of a Living Will.

We have numbered the paragraphs for ease of reference and explanation. There is no requirement that you do this.

Paragraph 1: In the blank on the first paragraph, you would complete your full name. The remaining provisions of Paragraph 1 explain that you are of sound mind at the time this document is being made and that it is your intention to prepare your Living Will and to provide for certain medical treatment procedures or limitations.

Paragraph 2: This paragraph is directed to the physician and informs him/her that these provisions should apply in the event of a terminal illness or a permanent state of unconsciousness. The physician is directed that certain life-sustaining treatment should not be implemented as set forth herein if the only purpose for such treatment is to prolong life.

There are specific provisions dealing with pain and alleviating pain in this paragraph. You should take care that you understand each of these provisions and that you desire that your pain be alleviated in a certain manner.

Paragraph 3: In this paragraph, certain conditions are defined and set forth in itemized fashion. Of course, each state may define these specific medical treatments differently. Additionally, you might add your own forms of treatment about which you feel strongly. You should consider the fact that any added forms of treatment must be defined clearly so that physicians and healthcare institutions will know what you are trying to accomplish.

This paragraph also states that if you do not specify one or more forms of treatment, this is in effect an authorization for the physician or healthcare institution to actually provide these types of treatment for the purpose of sustaining your life. You should be sure that you carefully consider each treatment and indicate all of those which are applicable to your situation.

Paragraph 4: This section involves a place by which you can specify a person to act as your agent in the event that you are not able to make the decisions regarding your medical treatment. In this statement it indicates that you must be: (1) incompetent, and (2) either in a (a) terminal condition or (b) state of permanent unconsciousness. Thus, if you are not incompetent, regardless of whether you are in the state identified in (a) or (b), this provision may not apply. While this interpretation may seem ridiculous, it illustrates how carefully you must understand when this document will be effective.

This paragraph also enables you to designate an alternative agent. This person will only serve in the event that the first person designated as your agent is unable to serve, refuses to serve, or is incapacitated. This paragraph does not provide that both persons designated will act together and/or work together in making sure your wishes are fulfilled. In fact, it is entirely likely that the second person may disagree with the interpretation given by the first of any provision in this document. Regardless of this disagreement, you should know that the first person has sole authority to carry out your wishes as this document is written.

You should also understand that a designation of one person in this document, as it is written, does not give this agent any authority over other decisions which may arise as to your estate. Again, courts are full of cases where a person designated an agent in one document, believing that this was effective for everything regarding their affairs, when it was not. If you need a person to manage or handle your personal or business affairs, you can draft a separate Durable Power of Attorney.

Paragraph 5: The Signature Line: This is a typical signature line and should be signed and dated by you. Some states require that your signature be notarized, which is an effective and legal way for another person to attest to their belief that you were competent at the time you signed it. A notary is not a guarantee of competency. Should an heir or another person bring a lawsuit or question your competency in a legal proceeding, the person signing as a notary may be asked to testify in court as to your condition and their observations regarding your condition and actions at the time you signed the document.

Paragraph 6: Witness statement: This statement provides written assurance that the persons witnessing this Living Will meet the requirements of most states. Most states require that each witness be over the age of 18, of sound mind, and not involved in any manner in the affairs of the person signing the Living Will.

It is important to note that each witness must actually see the Declarant sign the Living Will, not just recognize his/her signature, and sign later. The purpose for this formality should be considered by the Declarant when selecting the witnesses who will sign for him/her. The purpose of having two witnesses is that if there is ever a question raised about whether the Declarant was of sound mind or was not influenced by any other person when they actually signed the document, these two witnesses can be called into mediation or court and testify that they saw the Declarant on the day he/she signed, and that they appeared to be of sound mind and not under any undue influence when the document was signed. That is why it is critical to make sure each witness actually sees the Declarant sign the Living Will.

Healthcare Directives: Preventing Serious Legal Proceedings
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