An explanation of Living Wills for the Probate, Estates, Wills, and Trusts Lawyer Resource Center
for Attorneys and the general public, located in Washington DC and Maryland

Living Wills

What is a Living Will?
A living will is a brief declaration or statement that a person may make indicating their desire that certain medical treatment be either withheld or withdrawn under certain circumstances. Most states have statutes authorizing the creation of living wills, that specify that the statement or declaration be in substantially the following form:
"I have the primary right to make my own decisions concerning treatment that might unduly prolong the dying process. By this declaration I express to my physician, family and friends my intent. If I should have a terminal condition it is my desire that my dying not be prolonged by administration of death-prolonging procedures. If my condition is terminal and I am unable to participate in decisions regarding my medical treatment, I direct my attending physician to withhold or withdraw medical procedures that merely prolong the dying process and are not necessary to my comfort or to alleviate pain. It is not my intent to authorize affirmative or deliberate acts or omissions to shorten my life, rather only to permit the natural process of dying."
How is a Living Will Made?

Any competent person 18 years of age or older can make a living will by signing and dating a statement similar to that shown above before two witnesses. These witnesses must be at least 18 years old, and should not be related to the person signing the declaration, a beneficiary of his or her estate or financially responsible for his or her medical care. The statement can be typed or handwritten. It is recommended that a living will or any other advance directives be considered and prepared in advance of any hospitalization or impending surgery it is not something anyone should feel pressured to decide in a short period of time, if that can be avoided.
Limitations of Living Wills

While most people have heard of living wills, many are unaware of the significant limitations of the living will as defined by state statute. The terms "death-prolonging procedure" and "terminal condition" are used in most statutes to specify the circumstances to which a living will applies. The statutes define both of those terms as relating to a condition where death will occur within a short period of time whether or not certain treatment is provided.  In other words, the patient will die shortly with or without artificial resuscitation, use of a ventilator, artificially supplied nutrition and hydration or other invasive surgical procedures. By definition, then, a living will only avoids treatment when death is imminent and the treatment is ineffective to avoid or significantly delay death. Furthermore, the statute prohibits a living will from withholding or withdrawing artificially supplied nutrition and hydration, which is sustenance supplied through a feeding tube or IV.
Alternatives to Living Wills

For patients who desire to give instructions for their health care which exceed the limitations of the living will statute, there is an alternative, commonly referred to as "advance directives." An advance directive is an instruction by a patient as to the withholding or withdrawing of certain medical treatment in advance of the patient suffering a condition which renders the patient unable to refuse such treatment. A competent patient always has the right to refuse treatment for himself or herself or direct that such treatment be discontinued. Without an advance directive, once a patient becomes incapacitated, he or she may well lose that right. A living will is simply one type of advance directive. Recent court cases have made it clear that people have the right to make other types of advance directives which exceed the limitations of the living will statutes. Those directives need to be "clear and convincing," and may include instructions to withhold or withdraw artificially supplied nutrition and hydration or other treatment or machinery which may maintain a patient in a persistent vegetative state. These expanded advance directives can be tailored to meet the needs and desires of each individual patient, and need not be in any standard form. For example, they can specify that certain procedures are to be used for a reasonable period of time and then discontinued if they do not prove to be effective. Generally, additional advance directives should be signed, dated and witnessed in the same manner as living wills.
What Should I do With My Living Will?

The most important part of having a living will or other advance directives after they are signed is to be certain that they are accessible. They should be kept close at hand, not in a safe deposit box, because they may be needed at a moment's notice. Many people travel with them. Some even keep them in their purse or billfold. At a minimum, it is recommended that you deliver a copy to your attending physician and at least make your close relatives aware that you have one. Giving a copy of your living will or other advance directives to your physician gives you an opportunity to discuss your desires and ask any questions you may have about any procedure and also to ask your physician if he or she will follow your directions. If you have appointed an attorney-in-fact to make health care decisions in case of your incapacity, he or she should have a copy. If you are hospitalized, a copy should go into your medical records. For these reasons, it is often wise to sign more than one copy of your living will or other advance directives.
Revoking a Living Will

Once made, a living will or other advance directives are easily revoked or cancelled. They can be revoked either orally or in writing.  If possible, it is advisable to gather and destroy all copies of the advance directives if you desire to revoke them.  By most statutes, health care providers are required to note a revocation of a living will in the medical records of the patient.
Why Give Advance Directives?

You accomplish at least two things by giving advance directives, regardless of whether they direct all possible treatment, no treatment or only some treatment. First, you ensure that the treatment you receive is the treatment you desire, no more and no less. Second, you take the burden off of your family and friends to make those decisions for you at a time when they will most likely be emotionally upset by your critical condition. Finally, you may be avoiding litigation to determine what treatment you really desired or intended. In any event, it is time well spent.
Living Wills - Questions and Answers
What is a Living Will?

A written legal document Signed by the person making the Living Will Also signed by two witnesses unrelated to this person The document must comply with the laws of the state.
Who can make a Living Will?

Any person who is competent under the laws of that state to make a contract can make a Living Will.
What does a Living Will do?

The Living Will formalizes a person's wishes regarding the type of medical treatment and care to be used or withheld in the event of a serious illness.
How long is a Living will valid?

Until revoked by the person who signed the document.
Can a Living Will be changed?

YES!   The Living Will can be revoked as long as the person remains competant, and a new document prepared.
Why should I have a Living Will?

A Living Will documents the amount and types of medical treatment and care you wish to receive during a serious illness or incapacity.

The educational information provided here is only general in nature and is not intended as a legal opinion. For specific advice or assistance, please contact a legal professional.

For those that need further legal assistance, The Probate, Estate, Wills and Trusts Lawyer Resource Center provides an introduction into the District of Columbia and Maryland law practice of Attorney George Teitelbaum, licensed both in DC and MD.

We offer a wide variety of estate and elder law services for clients throughout the District of Columbia and Maryland. For more information, please contact our law office today. Attorney George Teitelbaum also assists clients located out of state that may have legal issues in the District of Columbia or in Maryland. To go to my main web site Click here.

Law Offices of George A. Teitelbaum
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Wheaton,  MD 20902
(4 blocks North of Wheaton Plaza and the Wheaton Metro Station on the Red Line, off Georgia Avenue, with easy and convenient parking steps away)
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Probate and estate administration, estate planning, and elder law attorney George Teitelbaum provides representation to clients throughout Washington, D.C., in all areas such as Northwest, Northeast, Southwest, Southeast, George Washington University, Downtown, Dupont Circle, Foggy Bottom, Georgetown, Sheridan, Logan Circle, Mount Vernon Square, Shaw, West End, Barney Circle, Capitol Hill, Chinatown, Judiciary Square, Kingman Park, Navy Yard, Near Northeast, Penn Quarter, NoMa, Southwest Federal Center, Southwest Waterfront, Union Station, and the National Mall. Also, Suburban Maryland, including: Montgomery County, Prince George's County, Wheaton, Silver Spring, Rockville, Bethesda, Aspen Hill, Kensington, Gaithersburg, Olney, Leisure World, and Potomac. Attorney George Teitelbaum also assists clients located out of state that may have legal issues in the District of Columbia or in Maryland.