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Living Wills

What is a living will?

Officially known as an Advance Directive for Health Care, a living will is a written document, prepared in advance, that directs an individual's physician to initiate, continue, withhold or withdraw life-sustaining medical treatment if the individual becomes irreversibly comatose (a permanent state of unconsciousness) or incompetent and terminally ill.

Who may execute a living will?

An individual must be 18 years of age or older or have graduated from high school or be married in order to legally execute a living will. The individual (known as the "declarant") - or another person at the individual's direction on his/her behalf - must sign the document. Two witnesses who are 18 years of age or older must also sign the document. An individual (i.e., a lawyer or guardian) who may have signed the declaration on behalf of the declarant shall not be a witness.

How do I make sure my living will is properly used?

A copy of the duly signed and witnessed document should be given to the declarant's attending physician so that it is made part of the declarant's medical record. In addition, a copy should be provided to the medical command physician for Emergency Medical Services (EMS) so that EMS personnel can be instructed in regard to the document's directions.

A living will becomes effective only after the attending physician makes a written diagnosis that the declarant is incompetent and in a terminal condition or a permanent state of unconsciousness. The attending physician's diagnosis must be confirmed in writing by a second physician.

Is a living will forever?

A living will may be revoked by the delcarant at any time. The revocation is effective upon its communication to the attending physician, who must include the revocation in the delcarant's medical record.

What constitutes "life-sustaining treatment"?

Life-sustaining treatment is defined as any medical procedure which only serves to prolong the process of dying or to maintain the patient in a state of permanent unconsciousness. An individual's living will may be very specific, if that is the individual's desire, in describing and instructing the attending physician to initiate, continue, withhold or withdraw particular life-sustaining medical procedures. The withholding or withdrawing of medical treatment is not considered as suicide or homicide under the law.

May an individual designate others to make decisions in regard to life-sustaining treatment?

The law permits the declarant to designate a surrogate and a substitute surrogate to make medical treatment decisions for him/her if the declarant is incompetent and in a terminal condition or a state of permanent unconsciousness. The surrogate(s) may be a spouse, a child or another person.

What if a physician will not comply with the living will?

If a physician or health care provider cannot in good conscience comply with a living will, then not in good conscience comply with a living will, then he or she must assist in transferring the case to another physician or health care provider who will comply.

What effect does a living will have on insurance?

Under the law, a living will should not affect any life insurance policy nor can an individual be required to write a living will in order to purchase life insurance. The existence or absence of a living will cannot affect insurance rates.

What offenses and penalties are contained in the legislation?

A person who conceals or damages the living will of another commits a third degree felony. A person may be charged with criminal homicide for forging or concealing a revocation of a living will. If undue influence, fraud or duress are used to cause the execution of a living will, such conduct is a third degree felony.

How do living wills affect pregnant women?

Notwithstanding any living will provisions, life-sustaining treatment, nutrition and hydration must be provided to a pregnant woman who is incompetent and terminally ill, or in a permanent state of unconsciousness unless such treatment:

  • will not ensure a live birth;
  • is physically harmful to the pregnant woman; or
  • causes pain to the woman which can not be alleviated by medication.

A physician is not required to administer a pregnancy test.

If an incapacitated pregnant woman is kept alive by life-sustaining treatment, the commonwealth must pay her expenses, and is entitled to reimbursement for such expenses by a third party health insurer.

What should be included in a living will?

Click here to view a sample of a living will. Keep in mind that this is not the exact form that must be used. It may be altered to include other directions at the discretion of the declarant. Specific medical procedures, whether by artificial or invasive means, are considered life-sustaining treatment if the declarant's living will specifically states so.

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