THE LIVING WILL – WHAT IS IT AND WHO NEEDS ONE?

By: Amy E. Brining

The Louisiana Natural Death Act (hereinafter "Natural Death Act”) was enacted to provide individuals with a way to communicate their refusal of medical care or for the withdrawal or withholding of life-sustaining measures. This is usually done by the individual’s written consent in a document known as a "Living Will.”

Life-Sustaining Measures

Life-sustaining measures are defined as any medical procedure performed only to prolong the death of a person diagnosed with a terminal and irreversible condition. The medical procedure includes the administration of nutrition and hydration and the administration of cardiopulmonary resuscitation.

A terminal and irreversible condition is defined in the Natural Death Act as "a comatose state with no reasonable chance of recovery or a condition caused by injury, disease, or illness which, within reasonable medical judgment, would produce death and for which the application of life-sustaining procedures would serve only to postpone the moment of death.”

Form of the Declaration

The declaration of an individual’s consent to the withholding or withdrawal of life-sustaining measures can be either written or oral. An important distinction to note between the written and oral declaration is that the written declaration, or living will, can be made at any time whereas an oral declaration can only be made after the individual has been diagnosed with a terminal and irreversible condition.

A living will has to be signed by the individual or declarant in the presence of two witnesses. "Presence,” as judicially determined, does not require that the witness actually see the declarant sign the living will, but the witness must be in the same room as declarant at the time of the declarant’s signing. Pettis v. Smith, 880 So.2d 145, 39, 295 (La.App. 2 Cir. 8/13/04), writ denied, stay denied 882 So.2d 551, 2004-2125 (La. 8/18/04).

An oral or "nonverbal declaration” has to be communicated by the individual (by a nonwritten communication) in the presence of two witnesses. The witnesses to the declaration, whether written or oral, must be competent, unrelated (by either blood or marriage) to the declarant, and must not be entitled to any of the declarant’s estate upon the declarant’s death.

Advising Your Physician

The declarant has the sole responsibility of advising his or her primary physician of the existence of the living will or oral declaration, if he or she is able. Upon notification by the declarant or any other individual of the existence of a living will or oral declaration, the primary physician is required to make the declaration a part of the declarant’s medical record. In the event of an oral declaration, the primary physician is required to record (in the declarant’s medical records) the reasons for the declarant’s inability to make a written declaration.

Revocation of the Living Will

The living will and oral declaration can be revoked by the declarant at any time. This can be done by a number of methods, including destroying the living will, executing a written revocation of the declaration, or an oral or nonverbal communication made by the declarant of his or her revocation. The declarant’s primary physician is required record the revocation, inclusive of the time and date of the revocation, in the declarant’s medical records.

What Happens When There’s No Living Will?

In the event that an individual has not executed a living will, the Natural Death Act provides classes of individuals who have the authority to make a declaration on behalf of a patient. The order of priority is as follows:

(1) any person designated by the patient in a written document;

(2) the judicially appointed tutor or curator;

(3) the patient’s spouse not judicially separated;

(4) an adult child of the patient;

(5) the parents of the patient;

(6) the patient’s sibling;

(7) the patient’s other ascendants or descendants.

Minor Patients

If the patient is a minor (under the age of eighteen), the minor’s spouse (if the spouse is of the age of majority) has the authority to make a declaration regarding the withholding or withdrawal of life-sustaining measures on behalf of the minor. If the minor has no spouse or if the spouse is not of the age of majority, then the parent or guardian of the minor has the authority to make these medical decisions.

A minor who is terminally ill has the authority, pursuant to the Natural Death Act, to declare his or her own intentions regarding the withholding or withdrawal of life-sustaining measures. The Natural Death Act provides that if the spouse, parent or guardian has "actual notice” from the terminally ill minor that the minor desires to prolong his life by life-sustaining measures, the spouse, parent or guardian may not make the decision to withdraw or withhold life-sustaining medical procedures.

Conclusion

The failure to execute a living will leaves all decisions regarding an individual’s medical care in the hands of others. These important decisions are left to the discretion of family members who may or may not agree with the individual’s philosophies regarding the withdrawal or withholding of life-sustaining procedures. The lack of a living will also imposes a heavy burden on family members to make these decisions during stressful times. The living will is an important part of any comprehensive estate plan, and insures that an individual’s health care choices are known and followed.