A living will is a document that sets forth your wishes concerning the extent of medical care you want to receive. It operates during your lifetime if you become unable to communicate your wishes at the time a healthcare decision must be made.

For example, many people direct that if they are in a permanent vegetative state and there is no reasonable hope of recovery, they do not want machines such as respirators and feeding tubes to keep them alive, but that they want maximum pain relief. Another relatively common provision is to direct that, in an end-of-life situation, you wish to receive hydration but not nutrition. Keep in mind that these are only examples of provisions that may be included in a living will; if necessary, you can tailor your living will in accordance with your own personal and religious beliefs.

The living will also sets forth minimum standards that must apply before the wishes set forth in the document are carried out. For example, a living will that contains directions for care to be provided (or withheld) when you are in a permanent vegetative state may further require that your doctor and a second doctor must agree that you are in that condition before the care set forth in the living will is provided (or withheld).

Living Wills, Healthcare Proxies and DNRs

Generally, a living will doesn’t name a person to carry out your wishes: that’s what a healthcare proxy is for. However, a living will plays an important role in guiding the decisions of the person who is named as your health care agent in your proxy. In that regard, if (for example) your living will states that you do not wish to be kept alive by machines, it can help alleviate any guilt that your health care agent may otherwise feel if a decision is made to not put you on a respirator or use a feeding tube. A living will also plays an important role in supporting the health care agent’s decision in case your family members (or your family members and doctors) disagree about what care you should receive.

Generally, I recommend that you give the person who is named as your health care agent a copy of your living will. Your healthcare proxy document should be shared with a broader category of recipients, including the person named as your proxy, your doctors, and any hospital to which you are admitted.

Finally, a living will is not the same as a DNR (“do not resuscitate” directive). A DNR is limited to directing medical providers not to provide resuscitation procedures if your heart stops beating or if you stop breathing.

Who Should Have a Living Will?

Living wills aren’t just for seniors; an adult of any age may wish to have a living will. To decide if you should have a living will, ask yourself:

“If I was in a situation where my doctor and another doctor both agreed that I was terminally ill or in a persistent vegetative state, with no reasonable possibility of getting better, would I want extraordinary care (e.g. feeding tubes, respirators) to keep me alive?“

• If the answer is “yes,” then you may not wish to have a living will.
• If the answer is “no,” then you should probably have a living will.

Out-of-State Validity of New York Living Wills

One question that has arisen is the issue of what happens if you are out of state when an end-of-life situation arises. The answer is that, if you are a New York resident and have a living will that is valid under New York law, other states generally will accept it as valid.

If you have questions regarding living wills or need guidance in this area, please contact us.