Living wills are among the least understood of all estate planning documents that I encounter in my law practice. The misunderstanding extends to even health care professionals who see the documents on a regular basis. There could be several reasons for the misunderstanding. First, since “will” is in the name, many people confuse living wills with regular wills which pass your property to your loved ones at death. Another reason for confusion is that living wills are often called by another name: advance directives. Although a living will is a type of advance directive, that term refers to other health care planning documents, too. Living wills are often confused with health care powers of attorney, documents that also deal with health care decisions, but are broader than living wills because they appoint someone to make all health care decisions for you and not just end of life decisions. Finally, living wills are often confused with “do not resuscitate” orders – which they are not.
So, if a living will is not these things, exactly what is it? In Louisiana, the law recognizes the right of a person to refuse medical care and to declare in advance of a circumstance when they may not be able to make or communicate that decision themselves. A living will instructs your physician regarding the circumstances in which you want to have life-sustaining procedures withheld or withdrawn. So, in short, a living will is to be used when you have been diagnosed as having a terminal and irreversible condition and you cannot communicate to your health care provider whether to withhold or withdraw certain life-sustaining procedures.
A living will ensures your personal dignity and your fundamental right to control your own medical care are respected even after you are no longer able to actively participate in the decision-making process. Therefore, when you create a living will, you should discuss with your loved ones and your health care providers what your wishes are. You should also provide a copy of your living will to your loved ones and your health care providers.
The Louisiana Secretary of State’s office provides a registry where you can file your living will so that it will be available if needed. There is a $20 charge for this service. When that office receives your living will, they will return a wallet card and a “do not resuscitate” bracelet to you. The providing of this bracelet could be the source of confusion between a living will and a “do not resuscitate” order. A “do not resuscitate” order only applies if you have heart failure or respiratory arrest and it instructs your health care providers not to administer CPR. A living will, on the other hand, applies to all life sustaining procedures, not just CPR, and it deals with all conditions, not just heart failure or respiratory arrest. A DNR order is written by a doctor upon your request or upon finding that the conditions are met where your living will has become effective. That is, that you have a terminal and irreversible condition and there’s no reasonable chance of recovery. Therefore, you should not wear the DNR bracelet from the Secretary of State’s office unless you do not want to receive CPR. Other commercial services provide online storage for your living will and other health care documents.
As you can see, a living will is an important part of your estate plan as it deals with your wishes in the specific situation where you are unable to communicate your wishes about end of life decisions. The living will, along with other advance directives for health care should be a part of your estate plan. To ensure you and your loved ones have the right documents to deal with all situations that might arise, you should consult with an experienced estate planning or elder law attorney.
The information provided is not intended to be legal advice and does not constitute any attorney/client relationship. You should consult with an attorney for individual advice regarding your own situation.
Ms. Melancon is an attorney with Legacy Estate & Elder Law of Louisiana, LLC with offices in Baton Rouge and Lake Charles, LA. The primary focus of her practice is estate planning, probate, special needs planning, and elder law. For more information or to attend an upcoming estate planning seminar, call her office at (225) 744-0027
