Issues with Living Wills and Advance Directives Your Family Needs to Know

This guest post is from by Matthew Meadows, Regent Law 2L and current Wills, Trusts & Estates student:

A living will is defined as an instructional document which specifies either generally or by hypothetical examples how a patient wants to be treated in their end of life situations, or in the event of an unforeseen tragedy. It is a tool that is used to alleviate a family’s extremely tough and burdensome decisions when faced with an imminent death surrounding a loved one. These living wills are developed to alleviate the pain and suffering a patient must endure. However, there are underlying issues within these documents that I believe are a cause of serious concern.

In Virginia, a typical instruction regarding one’s future healthcare instructions sounds something like this: “I provide the following instructions in the event that my attending physician determines that my death is very imminent and medical treatment will not help me recover.” What follows will typically be a list of the patient’s wishes in regards to resuscitation efforts, breathing machines, antibiotics, dialysis, and the list goes on. It is up to the patient to determine if they want their lives prolonged or not. The issue is not in the patient’s wishes because each patient has the right to decide what they want done with their body. The issue arises from the language “in the event that my attending physician determines . . . that medical treatment will not help me recover.” In the case of a patient putting in their living will that they do not want any treatment to prolong their life in the case the attending physician deems medical treatment useless, that person’s life has been left up to the sole discretion of the attending physician. Granted, that physician may consult with colleagues regarding the situation, but ultimately the decision is made by the attending physician. Doctors are not perfect, and human error is inevitable. So why leave your life in the hands of one individual’s discretion? One doctor could be under the impression that medical treatment is useless, and that the patient’s death is unquestionably certain. Meanwhile, another doctor at a different hospital could believe that the same patient could recover if given the proper treatment. Do we leave the patient’s life up to chance and what hospital they are brought to?

It all boils down to the language of the living will, and how well the person understands the language. When a person is drafting their living will and choosing the option of not having any life prolonging treatment, they need to know all the circumstances surrounding that decision, and that human error is inevitable. I would caution anyone who drafts a living will to consult outside sources, but especially those who determine they do not want their lives prolonged by medical treatment.