Advance Directives to Physicians (“Living Wills”)
While it is never pleasant to have to plan for the end of one’s life, having an advance directive, or a “living will” can help lift a burden off of your loved ones, who may sometimes be faced with extremely difficult decisions about your medical care. As you begin the estate planning process, consider also drafting a living will to help your family know what to do should you ever become incapacitated. An experienced Washington estate lawyer may be able to help you develop a plan in case of a medical emergency.
What is a Healthcare Directive?
Advance healthcare directives are sometimes called “living wills.” They allow a person to choose what they want to happen if they are medically incapacitated or unconscious. The need for a healthcare directive arises when they are not able to make or express medical decisions for themselves anymore. In Washington state specifically, the healthcare directive takes effect when either a doctor confirms that a person has a terminal condition or if two doctors agree that a patient is permanently unconscious.
Without a healthcare directive in place, those decisions will usually fall on close family members, like a spouse or child. Having to make decisions about whether to send a family member into surgery or terminate life-sustaining treatment can be traumatic, and family members may be burdened with wondering if they made the right choice. This is why many people choose to make these decisions for themselves in case the need ever arises.
How to Create a Healthcare Directive
In Washington State, certain conditions must be met to create a legally enforceable living will. First, the individual must be 18 years or older and of sound mind, which means they understand the nature of what they are signing and do not have a mental incapacity that prevents them from controlling or understanding their actions.
Second, the living will must be witnessed by two people who are unrelated to the individual making the living will. The witnesses also cannot be in a position to inherit from the person making the will. Alternately, you can sign the living will document in front of a notary. Finally, the witnesses must sign the document to finalize it.
After the will is finalized, it is important that it be delivered to all of the right people who will ensure that it is properly carried out if need be. This typically means it must be filed with all of the patient’s physicians, a healthcare agent or agents, and close family members who may need to advocate on your behalf. Sometimes your local hospital will also put it on file in case you are ever admitted.
Can I Change My Living Will?
Living wills can be amended according to the same procedures as an original. It should be signed in front of witnesses or a notary, and the updated copies should be delivered to the same people who received the originals. Also, keep in mind that what you put in your living will is not binding on you as long as you are conscious and not incapacitated. You can provide guidance that differs from what is in your living will while you are still able to make medical decisions for yourself.
What Is in a Living Will?
Living wills are typically fillable forms that ask you to answer a series of questions about your medical preferences. In Washington, some of the questions you will typically find on a living will form include:
- Whether you want to be kept on life-sustaining treatment when you are in a vegetative state
- Whether you want to have a natural death after you are diagnosed with a terminal illness
- Whether you want to receive artificial nutrition and hydration
- Whether you would like to receive medication to manage pain and discomfort
- Whether there are any special religious considerations that the healthcare provider should keep in mind
Keep in mind that “life-sustaining treatment” does not mean necessary surgery or medication to save your life. Rather, it refers to the application of a treatment that prolongs life, without which the patient would die naturally.
These questions are based on the Natural Death Act, a Washington statute that recognizes that adult individuals have a right to make their own medical decisions, especially as it pertains to death.
What Is the Difference between a Healthcare Directive and a Power of Attorney?
A Durable power of attorney is an essential component of establishing a living will. A durable power of attorney is a legal document that allows a person to designate an “agent” to act on their behalf when they become incapacitated. Where living wills direct what you want to happen in case of incapacity of unconsciousness, the durable power of attorney gives someone else authority to either make decisions for you or help enforce your healthcare directive.
To create an enforceable durable power of attorney, the party must be 18 or older and of sound mind. The living will may refer to the durable power of attorney to specify that the person named as the agent should adhere to your living will. The durable power of attorney goes into effect – and stays in effect – when the person becomes incapacitated. This triggers the agent’s authority to make these decisions for you.
Discuss Your Plan with a Washington Estate Planning Lawyer
Even if you are young and healthy, you should consider creating a healthcare directive to have on file in case of an emergency. Remember that should you go into an unconscious state, your family will be left with the difficult choice of how to direct your treatment. With a healthcare directive in Washington State, you can avoid this decision-making and allow healthcare providers to offer you the treatment you would prefer.
A healthcare directive is one of many components of a complete estate plan, along with wills, trusts, and powers of attorney. Contact Gillin Law Group at (425) 947-1130 to set up a consultation with a Washington estate planning lawyer.
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Resources on Wills & Trusts
We provide the following resources on Wills & Trusts in Washington State
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