What is a Living Will?

What is a Living Will?

What is a living will? – you may ask. Well, it has become an essential part of modern healthcare. It allows individuals to express their desires for medical treatment and end-of-life care by clearly outlining their wishes in advance.

A living will is a legal document explaining an individual’s wishes and instructions regarding medical treatment and care if they become unable to communicate or make decisions about their healthcare.

In this type of will, individuals typically outline their preferences for various healthcare scenarios, such as terminal illness or irreversible coma.

This article will provide an explicit, organized, and comprehensive exploration of the purpose of a living will. We’ll also cover the legal aspects and practical considerations that should be considered when implementing it in your strategic planning for healthcare.

What is a living will?

A living will is a legal document that expresses a person’s healthcare preferences and instructions in advance, mainly when they cannot speak or make decisions.

The term ‘living will’ can be misleading, as it primarily addresses healthcare preferences and is not related to the distribution of assets as in a traditional will.

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How living will work in Canada

In Canada, a living will, often referred to as an ‘Advance Care Directive’ or ‘Advance Healthcare Directive,’ serves as a document outlining an individual’s preferences regarding medical treatment.

The specifics can vary by province and territory, given that healthcare is primarily a provincial responsibility. Here’s a general overview:

  • Legal Recognition: Canada recognizes the importance of individuals expressing their healthcare preferences through advance care planning documents.
  • Integration with Healthcare System: Advance care planning documents are typically encouraged to be shared with healthcare providers and included in medical records.
  • Advanced Care Planning (ACP): In Canada, individuals are encouraged to engage in advanced care planning, which involves thinking about and documenting their healthcare preferences for future situations.
  • Health Care Proxy or Representative: In some provinces, individuals can appoint a healthcare proxy or representative through a document known as a “Power of Attorney for Personal Care.” Suppose the individual becomes unable to make healthcare decisions for themselves. In that case, this person is qualified to do so on their behalf.

Purpose of a living will

The purpose of a living will is to allow individuals to communicate and formalize their healthcare preferences in advance, particularly in situations where they may not be able to express their wishes. Key purposes include:

Expressing healthcare preferences

The primary purpose of a living will is to allow individuals to articulate their specific preferences regarding medical treatment. This includes decisions on life support, resuscitation, and other essential healthcare treatments.

Preventing unwanted medical interventions

By clearly outlining your medical preferences, you can prevent administering treatments that may be unwanted or go against your values. This ensures that medical interventions align with your wishes and quality-of-life expectations.

Reducing family conflicts

It is a proactive measure to reduce the potential for family disagreements or uncertainty about an individual’s healthcare choices.

Guiding end-of-life care

It addresses preference for end-of-life care, including decisions about palliative care, hospice care, and other comfort measures, providing guidance for a dignified and personalized approach.

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Legal aspects of a living will

The legal aspects of a living will are crucial for ensuring its validity, recognition, and proper execution. Here are vital legal considerations:

Legal definition

Understanding the legal definition and requirements of a living will in your jurisdiction is fundamental. Laws vary, and compliance is essential for the document’s validity.

Age and mental capacity

Legal requirements often dictate that individuals creating a living will must be of a specific age and have the mental ability to make wise decisions. Ensuring compliance with these criteria is essential for the document’s validity.

Legal advice

Seeking legal advice when creating a living will is very important. Consulting with an attorney specializing in healthcare law can ensure that the document complies with all legal standards and adequately reflects your intentions.

Notarization

Notarization of the living will may be required in some regions. This entails officially signing the document by a notary public, providing an extra layer of legal assurance.

Components of a living will

The components of a living will typically include:

Declarant’s identification

Clearly states the identity of the individual making a living will, known as the declarant. Personal information such as name, address, date of birth, and other relevant identity information are included.

Statement of intent

Clearly articulates the declarant’s intent to create a document that outlines their medical treatment preferences in case of incapacity. This may include a statement specifying when the living will becomes effective, often linked to the declarant’s inability to communicate or make decisions.

Statement of mental capacity

This part affirms that the person creating the living will is currently of sound mind and fully understands the implications of the will. This statement reinforces the document’s validity by confirming that you’re creating it voluntarily and with a clear understanding of its purpose.

Treatment preferences

The document specifies the individual’s medical treatments, procedures, and intervention preferences. It covers life-sustaining measures, resuscitation, mechanical ventilation, artificial nutrition, pain management and comfort care preferences.

Organ donation wishes

Addresses the individual’s stance on organ and tissue donation, specifying whether they wish to donate organs for transplantation or contribute to medical research.

Date of execution

This section includes the date when the living will is created. It serves to establish the timeliness and relevance of the document in accordance with the declarant’s current health status and preferences.

Revocation

The will often contains a provision specifying how it can be revoked or amended. This ensures that the document can be updated to reflect changes in the declarant’s preferences or circumstances.

Integration into medical records

Instructions are provided on how the living will should be incorporated into the individual’s medical records. This ensures that healthcare practitioners are informed of its existence and can reference it when necessary.

Signature and witness requirements

This part contains spaces for the individual’s signature and the signatures of witnesses. Many jurisdictions have specific requirements regarding the number and qualifications of witnesses for the document to be legally valid.

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Living will vs trust

A living will primarily address healthcare preferences during incapacity, detailing end-of-life medical decisions. It involves a healthcare proxy for decision-making authority.

In contrast, a living trust focuses on managing and distributing financial assets during and after an individual’s lifetime, often avoiding probate. It appoints a trustee for asset management, offering greater privacy and efficiency in the distribution process.

While a living will ensures medical wishes are honoured, a living trust streamlines financial affairs, emphasizing a comprehensive approach to estate planning. Both documents serve distinct purposes in safeguarding an individual’s healthcare and financial interests, often complementing each other.

Advantages of a living will

Here are some advantages of having a living will:

Autonomy and personal control

It allows individuals to express and maintain control over their medical treatment preferences, even when they cannot communicate.

Avoidance of unwanted interventions

Prevents unwanted or unnecessary medical interventions by explicitly stating limits on specific treatments and aligning medical care with personal values.

Peace of mind

Provides peace of mind for individuals, knowing that their healthcare preferences are documented and legally recognized.

Legal recognition

Offers legal recognition and validity, ensuring that the document will be honoured by healthcare professionals and institutions.

Efficient decision-making

Facilitates efficient decision-making for healthcare providers during emergencies, as the living will serve as a guide for appropriate medical interventions.

Challenges of a living will

While a living will offers numerous benefits, there are specific challenges associated with its creation and implementation:

Legal variability

Legal requirements for living will vary by jurisdiction, posing challenges for individuals who move between regions with different regulations.

Family disagreements

Despite the document’s clarity, family members may still have differing views on interpreting the living will, potentially leading to conflicts over treatment decisions.

Lack of universal recognition

Living wills may only be universally recognized or honoured in some situations or jurisdictions, leading to potential challenges in ensuring consistent adherence to the document’s directives.

Unforeseen medical advances

Rapid advancements in medical technology may introduce new treatment options or scenarios not considered in the original living will, requiring regular reviews and updates.

Emotional distress

Discussing end-of-life preferences can be emotionally distressing for individuals and their families, potentially creating tension or discomfort.

Implementation and accessibility

Implementing a living will involves ensuring its accessibility and recognition when needed. Here’s how to facilitate its implementation:

Safe storage

After creation, emphasis is placed on accessibility. Physical copies should be stored securely in fireproof and waterproof containers, such as safes or safety deposit boxes.

Inform healthcare providers

Make copies of your living will and provide them to your primary healthcare provider. Ensure that these documents are integrated into your medical records.

Medical bracelet or card

Wear a medical bracelet or keep a wallet-sized card indicating the existence of a living will. Include details on how to access the complete document.

Family awareness

Inform family members about the existence and location of the living will. Discuss its contents with them so they know your choices and can advocate for them if necessary.

Digital copies

Keep digital copies of the living will in a secure but easily accessible location. Consider using secure cloud storage and sharing access with trusted individuals.

Review and updates

Regular review and updates of a living will are essential to ensure that it accurately reflects an individual’s current preferences and continues to serve its intended purpose. Here’s a guide that explains how to go about the review and updating process in Canada:

Schedule periodic reviews

Establish a schedule for reviewing your living will. Consider doing this annually or more frequently if there are significant life changes, such as a new diagnosis, changes in relationships, or alterations in personal values.

Life changes and milestones

Significant life changes or milestones, like divorce, marriage, the birth of a child, or the passing of a loved one, happen. Reviewing and updating your living will to reflect these new circumstances is essential.

Changes in personal values

Personal values and beliefs can evolve. If there are shifts in your philosophical or religious perspectives, consider whether these changes should be reflected in your living will.

Family discussion

Involve your family in the review process. Discuss any changes in your living will with them, ensuring they know your wishes and the reasons for any modifications.

Review of advance directives

Regular review of advance directives, including the living will, is essential. This ensures alignment with current preferences, compliance with legal requirements, and open communication with designated individuals.

Conclusion

A living will is an essential tool for individuals to assert control over their medical decisions.

Regular reviews, open communication with healthcare proxies, and staying informed about legal requirements ensure that this document remains a current and accurate expression of one’s values, contributing to a more thoughtful and compassionate approach to end-of-life care.

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FAQs about what is a living will

Do I need a legal assistant to create a living will?

While not mandatory, obtaining legal assistance to create a living will is advisable. Legal professionals ensure compliance with local laws, offer clarity in addressing complex medical scenarios, and provide guidance on notarization.

Can I create a living will online?

You can create a living will online using various platforms and templates. However, ensuring that the online form complies with local laws, includes necessary elements, and addresses specific healthcare preferences is essential. Consulting with legal professionals may offer additional assurance of the document's legal validity and effectiveness.

Can I create an online living will for someone else?

No, you cannot create an online living will for someone else. This type of will is a personal document expressing a person's unique healthcare preferences and decisions. While you can assist someone in understanding the process and expressing their wishes, each person must create their own living will to ensure that it accurately represents their desires and values.

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December 4, 2023
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