ESTATE PLANNING: Enforcing a living will

2013-07-27T10:35:00Z ESTATE PLANNING: Enforcing a living willChristopher Yugo Times Business Columnist
July 27, 2013 10:35 am  • 

Q: I was told by a medical professional they don’t have to follow a living will. He said that a doctor could override a living will and provide life support even if the person signed a living will stating they don’t want the care. Is this true?

A: As most of you know, a living will is an advanced medical directive. The living will provides that if a person is terminally ill, death will occur within a short period of time and providing medical care will only prolong the dying process, that person may instruct that medical care be withheld.

The instructions to withhold medical care don’t apply to things necessary to make the patient comfortable during the dying process. In other words, the patient will be provided medication for pain and may be kept sedated when appropriate. However, extraordinary measures won’t be used to force the patient’s body to stay alive.

I am not personally aware of any incidents where a physician refused to comply with a living will. I’m sure that it has happened, but I’m not aware of any incidents

My initial reaction when I read your question was that a physician may be concerned with liability. Let’s face it, suing doctors is an industry all to itself. However, in this situation, health care providers are granted a great deal of immunity. So I don’t think that a physician who refuses to honor a living will is doing so for liability reasons.

If a physician refuses to comply with a living will, I suspect it would be due to some dispute regarding the requirements for withholding the care. For example, perhaps the physician doesn’t believe that a person is truly terminally ill. If the physician believes that with proper care, a patient can recover, than he isn’t necessarily terminally ill and the living will wouldn’t come into play.

Perhaps there is some dispute over what is a “short period of time”. Perhaps the physician doesn’t believe that death will occur within a short period of time and therefore the living will doesn’t apply.

Unfortunately, if a physician refuses to withhold the medical care as required in a living will, the family would likely have to go to court and enforce the document. The good news is Indiana has some strong living will code provisions, and I’m guessing the person trying to enforce the document will be successful. They may just have to jump through some hoops to get there.

An advanced medical directive is an important part of a person’s estate plan. Whether it is a living will or a life prolonging procedure declaration, I think it’s a good idea to leave some instructions for your loved ones. Don’t let the fear a doctor won’t honor your instructions stop you from executing one.

Christopher W. Yugo is an Attorney in Crown Point Indiana. Chris’ Estate Planning Article will appear every Sunday in the Times. Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, Indiana 46321 or to Chris’ information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.

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