by Joseph Nicholson

Created on: May 29, 2009

The concept of an advanced medical directive began as the living will first formally proposed in a law journal article by an estate lawyer in Illinois. Building on existing estate law that allowed a living person to provide directions for the administration of their assets after death, he conceived of an instrument by which a person could give instructions to future health care providers in the event they could no longer communicate their own will. In 1975, the collapse of a 21 year old into a coma after mixing drugs and alcohol at a party sparked a national debate on the right to die as her parents fought to remove her from life support. In 2005, the interest in living wills was revived by the case of Terry Schiavo, who was kept alive in a vegetative state entirely by life support. In the absence of explicit instructions from her, courts were forced to decide who had the right to make the final decision.

To avoid confusion, many states have dropped the term living will in favor of "advanced medical directive." The most common use of a medical directive is to declare an individual's intent regarding life support should he wind up in a vegetative state with little or no hope of recovery. State laws were specifically enacted to allow for such an expression of intent. But living wills also address other treatments and procedures and whether the maker of the will wishes to receive them or not. Most people elect not to continue life support and specify they want only treatments designed for the cessation of pain and the creation of the most comfortable death-bed environment possible.

A living will is not the same as, or even similar to, a Last Will and Testament. It does not transfer property upon death. A living will gives specific instructions to medical professionals and establishes some parameters in case you are unable to make or communicate your own choices. Because of the confusion over the title of the document, some states have switched from using "living will" to "advance directive" or some such term.

Each state has its own rules, requirements and limitations on living wills (see Resources). The requirements of the states should always be followed when drafting a legal document, and most states have forms that make it easy to create a living will. Generally, these make a declaration about life support and then allow you to list the treatments, procedures or drugs you want to receive or not receive in case you become incapacitated.

A living will goes into effect immediately when a doctor determines that you are medically unable to communicate your wishes regarding treatment. The medical staff is then bound by the restrictions and permissions given in the living will document. Usually this includes a statement about life support (whether or not you want it) and the kinds of treatments you allow. Those who don't want artificial life support typically only permit treatment that alleviates pain during the final hours of life.

Some state laws explicitly state that a legal will created in any state is valid, but others do not. Therefore, if you spend a lot of time in another state, you should examine the differences between the state laws and consider executing a living will for each state. Another consideration is that most states will not enforce a living will with regard to a pregnant woman out of regard for potential steps that could save the life of the unborn child.

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