Why do I need a Living Will? And what is it, exactly? Communication is key

Have you been treated at the hospital or met with an attorney to prepare estate planning documents and been asked, “Do you have a Living Will?” The answer to the question of exactly what is a Living Will, will help you, “the principal,” to answer the first question.

A Living Will,  (a.k.a. an Advance Healthcare Directive), is defined in Chapter 54, Section 5422 of the Pennsylvania Probate, Estates and Fiduciary Code as a writing that expresses a principal’s wishes and instructions for health care and health care directions when the principal is determined to be incompetent and has an end-stage medical condition or is permanently unconscious.” (Emphasis added). When I discuss this topic with my clients, I want them to understand the particular circumstances that must exist before this declaration is followed. 

There are only two scenarios in which this document is viable. The first circumstance is if your health has reached an ”end-stage medical condition.” This is defined in Section 5422 as “an incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness that will, in the opinion of the attending physician to a reasonable degree of medical certainty, result in death, despite the introduction or continuation of medical treatment…”

The second condition in which a Living Will would apply is if you are "permanently unconscious." This is defined as “a medical condition that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term includes, without limitation, an irreversible vegetative state or irreversible coma.”  

In these circumstances, you cannot speak for yourself, your condition is irreversible and the outcome is inevitable. Understanding that there is a very narrow application of the Living Will document, will, hopefully, assist you in deciding whether or not you want to have this document in place. Other than these dire, specific, end of life situations, the Living Will does not apply.  

Do you need a Living Will? You may never need this document, however, if you were in an end-stage medical condition or were permanently unconscious you would not, at that time, be able to communicate your wishes as to ongoing care and treatment. With this document in place, your wishes for treatment at this particular time in your life would be known.

The law also explicitly states in Section 5426 that, “in following a living will, the outcome of death is not suicide or homicide. The withholding or withdrawal of life-sustaining treatment from a principal or patient resulting in death, in accordance with the provisions of this chapter, shall not, for any purpose, constitute suicide or homicide.”

Do we want to consider these grim possibilities? Certainly not.  However, the possibility of our health diminishing in this way still exists. The best approach for dealing with this issue is communication. Speak with your healthcare provider and discuss the use of this document in his or her practice. Speak with your loved ones, your spouse, adult children, family or close friends to share your feelings and concerns on this issue. Discuss the living will with your estate planning attorney to better learn the purpose and use of this legal document.

In February of 1990, a young woman collapsed. She was twenty-six years old. Her husband found her that morning, unconscious, on the hallway floor. She would never return to full consciousness. She died in March of 2005, fifteen years after the initial collapse. Terri Schiavo, a Montgomery County, Pennsylvania native, her serious health concerns and the respective families’ experiences dealing with this tragedy, generated national attention on the issue of a person’s right to die, or right to live. There was nothing in writing to communicate the wishes of this person in the event that such a health issue occurred. Her husband stated that his wife would not have wanted to live this way, however, there was no legal document in place. As a result, a difference of opinion between her spouse, and her parents on what she would have wanted, resulted in years of litigation and emotional turmoil in an effort to reach a decision regarding her right to die, or right to live.   

Throughout life we are tasked with making many decisions for ourselves and our loved ones; our public and personal life is built on the decisions we make, or choose not to make. How we want our life to end may never be a decision we have to make, but, we can have the answer prepared for the question of how we want to continue to live or to die in the event that we are faced with these serious healthcare consequences.

Carolyn M. Marchesani, Esq. is an associate in the law firm of Wolf, Baldwin & Associates, P.C. She focuses her legal practice in estate planning, probate and estate administration in Montgomery, Berks and Chester Counties.  She can be reached by phone at 610.323.7436, or by email at cmarchesani@wolfbaldwin.com.

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