LIVING WILL

What is a Living Will?

The most widely known advance directive is the living will.  Living Wills are recognized by law in more than forty states including Arkansas.  Each state has its own requirements for living wills.  This is governed in Arkansas by the "Rights of Terminally Ill or Permanently Unconscious Act," A.C.A. § 20-17-201, et seq.

A living will is a document in which a competent person states that she does not wish to receive lifeprolonging treatment in the event she suffers a terminal illness and becomes incompetent to make health care decisions.  Arkansas follows the cur­rent trend after the U.S. Supreme Court decision in the Cruzan Case in that it also applies in cases where a person is not terminally ill, but is permanently unconscious.  Arkansas also allows a living will to be used to designate a person who is empowered to make specific treatment decisions as they come up.

Living will laws require physicians to follow the instructions in a living will or to transfer the patient to a provider who will.  They also protect health care providers from being sued or criminally prosecuted for following the instruc­tions in a living will.

Although living wills are legally binding only in states that have legislation au­thorizing them, they are often helpful in decisionmaking for families or health care providers in states without living will laws as well.  Because health care providers in states without living will laws are not safe from being sued or prosecuted for follow­ing the instructions in a living will, however, they may be reluctant to follow the patient's instructions.

Arkansas law contains two model declarations.  The forms of these declarations may be adopted but are not mandatory.  A form combining both has been adopted by the Arkansas Bar Association and is widely distributed.  The lack of a prescribed form makes it possible to vary the instructions in a living will form to reflect one's own wishes. 

In addition, Arkansas laws specify formalities that must be followed in executing a living will. 

·    You must be 18 years or older to create a declaration (living will).

·    You must sign the document, or, if physically unable, direct another person to sign.

·    Two other individuals must witness your signature.

·    Others, as specified by Arkansas statute, may execute a declaration if you are unable to do so.

It is a good idea to notify your family and physician of your living will and ask to have a copy placed in your medical records.  A health care provider must enter the declaration into your medical record after receiving a copy of it.  Your physician must notify you if he is unwilling to comply with your instructions.  You also should keep a copy with your other important papers and consider asking a close friend or relative, and perhaps your lawyer, to keep a copy.  Living wills are usually effective for an unlimited time unless revoked by the maker.  They may be revoked at any time, whether the patient is competent or incompetent.  The living will becomes "operative" when the attending physician learns of the declaration and two physicians have determined that the patient is in a "terminal condition".

What Are the Advantages and Disadvantages of Living Wills?

Advantages:

The primary advantage of a living will is that it provides written evidence of a patient's preferences, thus giving the patient a measure of control that would not exist if no instructions were left.

The other major advantage is that a living will protects medical care givers from civil and criminal liability for following its instructions.  This is an impor­tant consideration, because it removes a major barrier to carrying out the pa­tient's wishes.  Arkansas statute specifically disapproves of euthanasia, or mercy killing.  A.C.A. § 20-17-210 (g).

Disadvantages:

The major disadvantage of a living will is that they are restrictive in the kinds of decisions they allow.  Therefore the degree of control to be gained by making a living will is very limited.  Instructions in a living will generally may be carried out only if the patient is in a "terminal condition." Arkansas, however, does allow a living will for a person in a "permanently unconscious" state.  Thus, a living will may not apply to decisions that must be made in many other medical situations.

Living wills typically provide a means for a person to refuse treatment, but not to request it.

In states with restrictive living will laws, however, a person can include instructions that really reflect his or her wishes about  treatment choices, and these can guide family members and health care professionals though the law may not explicitly require it.