The Living Will – Advance Directive for a Desire for a Natural Death

What is a Living Will?

One of the foundational estate planning documents recommended by McIntyre Elder Law attorneys is a Living Will.  The name “Living Will” is a misnomer of sorts for this very important estate planning document.  A Living Will or an Advance Directive for a Desire for a Natural Death is governed by N. C. Gen. Stat. §90-321.  This statute allows the declarant (the person signing the document) to execute a written directive to health care providers regarding the individuals’s end of life health care decisions and the declarant’s desire not to be kept alive by artificial means.

When does a Living Will come into effect?

1. The declarant has an incurable or irreversible condition that will result in death within a very short period of time.
2. The declarant becomes unconscious, and there is a high likelihood that the person will never regain consciousness. This is sometimes referred to as a “vegetative state.”
3. The declarant suffers from advanced dementia or any other condition that causes a substantial loss of cognitive ability, and that loss is irreversible to a high degree of medical certainty.

How do I protect my wishes during those instances?

In these circumstances, the declarant can make a written, legal declaration that s/he does not want to be kept alive by artificial means.  If one of the circumstances described above is occurring, your Living Will should be provided to the attending physician and/or hospital as soon as possible. 

At McIntyre Elder Law, we provide our clients with secure electronic storage and access to this document (and all of your important estate planning documents) via eDocs, so you don’t have to worry about having copies with you during an emergency or health care crisis.  The documents can be accessed from your phone or computer via a secure login.

The Power of Proactive Planning

By planning ahead, you can direct your doctors and health care providers of your final wishes and simultaneously relieve your loved ones from having to make extremely difficult end of life decisions on your behalf.  Nobody wants to be the person who makes the call of when to prolong or end the life of their beloved family members.  Having your Living Will in place takes that decision away from your loved ones – and you get to decide what happens with your body and your health.  You can align the directives in your Living Will to honor your personal religious, spiritual, and family traditions. 

You can also use a Living Will to prohibit medical procedures that you do not want to be performed – or you may specifically authorize or prohibit an autopsy or direct cremation of your remains.  Again, a Living Will eases the burden of your loved ones in your final moments.  Instead, your family members can focus on being present with you and grieving the loss, and they do not have to make those decisions on your behalf.

Is the Living Will the same as a DNR?

An important distinction should be made between a Living Will and a Do Not Resuscitate (“DNR”).  A Living Will is a document that should be prepared by an attorney, while a DNR is a medical order that is signed by a physician that tells medical and emergency medical personnel not to use any measures, including CPR, to save your life.  So, while a Living Will instructs medical providers of your wishes not to be kept alive by artificial means, a DNR tells medical providers to do NOTHING to attempt to save your life.  There are many instances where emergency treatment, such as CPR, can save your life – so think carefully before putting a DNR in place.  That is a discussion to have with your doctor and your family so that they understand your wishes in the event of a medical emergency. 

Let’s Talk About Your Estate Plan

It is extremely important that a Living Will is prepared by a licensed attorney, even though there are some forms that exist online and in other public resources that feel like a short-cut or the less expensive option.  There is no price that you and your loved ones can place on the piece of mind of knowing that your documents are legal and correctly drafted.  A Living Will or Advance Directive is only used in very difficult situation(s) and/or life threatening scenarios, so you will want to make sure that yours is solid.  While there are some documents where an online form may suffice, this is not one of them.

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Take the First Step Today

Don’t wait until it’s too late. Planning now can save you and your loved ones a lot of stress and uncertainty in the future. Reach out to us, and let’s secure your peace of mind together.

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