For the past two days on Facebook I have written about
estate planning for young adults. Today I’m
talking about living wills. As a lawyer
I can tell you clients love living wills like they love living trusts. I am not a whole-hearted proponent of either.
Living wills are an oxymoron. My nickname for them is kill-me-now. A living will is an advance directive that
says I do not want life support. They
are readily available on line for free.
The most famous living will case was Teri Schiavo. She didn’t have a living will. Her husband said she told him she did not
want to be kept on life support. Her parents
wanted her on life support (tube feeding).
Once you’re married your spouse is your next of kin, not your parents. The
life support was withdrawn. Schiavo
died.
If you have a living will and the hospital knows it expect
them to act on it. If you have a health
care power of attorney and your agent disregards the living will and asks the
hospital to keep you alive your agent should expect to be sued by the hospital
for ignoring your advance directive.
I came to my ambivalence for living wills naturally. When my brother was 26 he was hit by a
car. As a result of that accident he
suffered massive injuries, the greatest of which is to his brain. Death was oh-so-close when the doctors told
my mother the only chance he had was if they put him in a pentobarbital
coma. This would slow his body down and
give it a chance to heal. My mother
powerfully wanted my brother to live. She
wanted the pentobarbital. Mom was next
asked if my brother had a living will because if he did, no pentobarb. My brother was a 26 year old manual laborer. He had dyslexia and a tough time reading and
writing. He did not have a living will.
My brother got the pentobarbital coma. They gave him a 3% chance of coming out of
that coma neurologically responsive, as opposed to vegetative. They only gave
him a 4% chance of coming out vegetative.
The other 93% was death. My
brother squeezed through the 3%. My
brother suffered terribly in his recovery and continues to suffer every day of
his life. Sometimes my brother complains
about his situation and I ask, “Would you rather be dead?” He always says no.
My daughter has only ever known my brother in his disabled
state. As she got older I told her that
her uncle had not always been like that.
He used to be able to walk and talk, like you and I. My daughter would ask questions and I would
tell her stories.
By the time my daughter was in the second grade she told me
that she never wanted to be like her uncle.
If I was ever asked or given a choice, do not let her be like her
uncle. By the third time she gave me
this speech I told her I got it, I don’t want to talk about it anymore. It was a tough conversation the eight year
old kept bringing up.
After that dialogue I asked myself if I would like to be
like my brother. No. I wouldn’t want my daughter to have to continuously
arrange and monitor my care. That is a burden
I would not want to put on the people I love.
But I was with my mother when she requested that pentobarbital
coma for her son. I also listened to my
daughter implore me not to ever allow her to be like my brother. I understand both sides. It is for this reason I am not quick to write
up living wills for myself or my family members, though if the clients want
one, they walk out with them. I prefer
allowing the designated agent in my health care power of attorney to make the
best decision for me with the information they have at the time.
