April 2016 Bar Bulletin
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April 2016 Bar Bulletin

Living Wills: Preparing for an Uncertain Future

By Eric Reutter


I have always been interested in end-of-life legal issues. In an effort to better educate myself about estate planning topics, I have been researching the history, terminology and application of various estate planning documents. This article is a brief overview of the term “living will,” covering the following three terms: (a) living will; (b) advance health care directive; and (c) health care power of attorney.

In order to explain what a living will is, it is important to first explain what it is not. Despite the fact that this document is labeled a “will,” it shares very little in common with a last will and testament. Rather than controlling property disposition upon death, as a traditional will does, a living will instead instructs health care providers whether to pursue life-sustaining treatment for incapacitated individuals who are in a “terminal” or “permanent unconscious” condition.1

Advance Health Care Directives

Preplanned health care decisions, however, need not be limited to situations where a person is either terminally ill or permanently unconscious. On the contrary, an individual may plan in advance for any form of incapacity, and one’s advance health care decisions may cover any instruction imaginable, ranging from basic comfort requests to organ donation. Documents containing any type of advance health care preferences are known as “advance health care directives.”

A living will, therefore, is simply a specific type of advance health care directive — one that controls life-
sustaining treatment for the terminally ill or permanently unconscious. Health care powers of attorney are another example of advance heath care directives. Although a living will is a specific variety of advance health care directive, these two terms are often confused or used interchangeably.

But why are there multiple, often confusing terms for categorizing these two very similar documents? The answer is that these two terms, although similar, have distinct historical roots.

Living wills were created by state legislatures as a reaction to social debate regarding the artificial prolongation of life: an ongoing debate made prominent via events such as the Terri Schiavo case. Advance health care directives, although also legal responses to rapid changes in medical technology, came into existence more gradually through the judicial process and successive court opinions. In effect, the modern-
day definitional overlap between living wills and advance directives is a form of “scar tissue” resulting from the different historic legal responses to rapidly changing medical technology.

The Legal Power of Living Wills

In Washington, the term that lawmakers use to describe a living will is a “directive to withhold or withdraw life-sustaining treatment.”2 The Legislature specifically focused this statute on the terminally ill and permanently unconscious because it felt that patients in those conditions, if caused to undergo artificial prolongation of life contrary to their wishes, could experience “loss of patient dignity, and unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the patient.”3 As a result of these concerns, the Legislature attached specific legal powers to the health care instructions within living wills and other advance health care directives.

Washington law, for example, protects those who have made a valid advance directive by imposing specific obligations on health care providers. If a health care provider has policies that conflict with its abilities to carry out the instructions within an incoming patient’s advance directive, the provider is bound by law to notify the patient and, if the patient decides not to retain the health care provider, the provider must make efforts to transfer the patient to a facility that will honor the instructions.4

Additionally, and specific to living wills, the law imposes criminal penalties against anyone who attempts to damage a living will or alter it so that life-sustaining treatment is withdrawn contrary to the individual’s wishes.5

What Happens When There Is No Living Will?

The question now becomes: What would happen to an individual with no living will, who is incapacitated and unable to communicate his or her health care preferences? In these cases, Washington law looks to a surrogate decision maker to step in to make the health care choices for the patient, in the following order of priority:

1) Guardian (if any);

2) Individual who has been given a durable power of attorney;

3) Spouse or domestic partner;

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