What is the difference between a will and a living will?
A will is a document that springs into action when you die. It has no legal effect while you’re alive. On the other hand, a living will is a document that dictates what course of action to take when you are terminally ill, or in a persistent vegetative state and unable to make decisions on your own behalf.
Is there anything special about living wills in Colorado?
There is a statutory form used to create a living will in Colorado so there is consistency within the state, but there may be differences between the states. If you move between states, you will need to check that your living will is valid in the state you move to.
Are living wills legally binding?
Living wills are legally binding – they are witnessed by two people and there are strict rules around who can be a witness. Witnesses can’t be affiliated in any way with any institution you might be relying on, such as a hospital or nursing home. They also can’t be an heir or beneficiary of your estate. There are very stringent guidelines for the qualifications of witnesses for a living will.
Can a living will be contested or ignored?
In order for a living will to be implemented you need an advocate to ensure that your healthcare provider is aware of and follows the instructions set out in the living will. Your advocate is usually the agent designated in an accompanying medical power of attorney. In Colorado, if there is not a designated agent in a power of attorney, decisions fall to a group of “interested parties”, which could include family members or friends. Anyone can chime in to give their opinion on what you would have wanted. It is therefore critical to have both a living will and medical power of attorney so that you know you have an agent to be an ambassador for your wishes.
Where should I keep my living will?
Don’t just put it in your closet or filing cabinet and forget about it. Your doctor needs to know about it, as does your advocate (the agent in a medical power of attorney) so that it can be used if required. If no one knows about it, it won’t be followed.
When does a living will apply?
Your doctor will need to be aware of it in two situations: The first is if you are in a terminal condition and the other is if you are in a persistent vegetative state. These are the only situations where a living will apply and are very similar.
A terminal condition is defined as “an incurable or irreversible condition for which the administration of life-sustaining procedures will serve only to postpone the moment of death.” Life-sustaining procedures are defined as “[A]ny medical procedure or intervention that, if administered to a qualified patient, would serve only to prolong the dying process.” It also includes language regarding artificial hydration and nutrition.
A persistent vegetative state is “a condition in which a medical patient is completely unresponsive to psychological and physical stimuli and displays no sign of higher brain function, being kept alive only by medical intervention.”
In COVID, being on a ventilator could apply to both these conditions.
How is COVID impacting living wills?
COVID-19 presents challenges to the termination of life support. Usually, a life-sustaining procedure means that someone is put on a ventilator and but for that ventilator, they would die. COVID-19 is a virus that attacks the lungs and treatment for the most serious cases is a ventilator. In many, if not most living wills, the document indicates that someone wants neither none, nor all, but rather some ventilation for a specific time period. Usually, it is 3, 7, or rarely, 14 days. These are relatively short periods of time when treating COVID-19.
There is therefore often a tension between what people have put as their wishes on their living will and the unusually long period (in many cases) of ventilation when diagnosed with COVID-19. There is no easy solution. My recommendation at the moment is that people wait to make a living will until after the pandemic, given the fact that people can survive on respirators for a long time.
For those who do want to do a living will, I am adding specific phrases with regard to COVID-19, but I would prefer to wait until after the pandemic and then at that point finish the estate plan with a living will. However, I still highly recommend that everyone get a medical power of attorney.
You can read our dedicated blog for a fuller explanation of how COVID-19 is affecting living wills.
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