By: Steven A. Loeb
If you are thinking about estate planning issues at all, it is important to consider drafting a living will. While most people who begin estate planning consider issues such as drafting a will, creating a trust, or naming a healthcare or durable power of attorney, the living will can be an extremely important document. Unlike a will, which takes effect upon a person’s death, a living will is in force during the person’s life in the event that she or he cannot make certain healthcare decisions for herself. In effect, the living will says what kind of medical treatment, if any, the person would like to have if she is incapacitated. Why is a living will so important?
In a recent court case, re. the Matter of Juan Fernando Romero, a judge ruled that a spouse has the authority to remove his or her partner from life support if there is no living will or other advance directive in place. This ruling emphasizes one of the important reasons to do a living will. We want to provide you with a list of the reasons that this document is so important in the event of an emergency or a healthcare crisis.
1. Without a Living Will, a Spouse May Make the Wrong Decision
Even if you have been telling your spouse that you wish to remain on life support in the event that you enter into a vegetative or minimally conscious state, or if you have been saying just the opposite, the recent court ruling in California underscores that your verbal discussions with your spouse might not be binding. In that case, a husband was left in a persistent vegetative state after suffering a lack of oxygen to his brain. His wife wanted to remove him from life support, believing that he would not return from the vegetative state. The husband’s sister argued his religious beliefs would have led to his desire to remain on life support. The sister filed a claim, and the court ruled that the wise was the “presumptive health care surrogate” for the husband “in light of his incapacitation.”
By drafting a living will, you can make clear what your wishes are in such an event. Keep in mind that drafting a living will is important for older adults who are engaging in estate planning, but such a document is also essential for individuals of any age. Accidents can happen, and even an otherwise young and healthy person can be left incapacitated.
2. Drafting a Living Will Takes the Pressure Off Your Family
When a loved one suffers an injury or otherwise enters into a persistent vegetative state, which is also known as unresponsive wakefulness syndrome, the lack of a living will can make decisions extremely difficult on families. Family members can argue over the right decision to make, as in the recent case discussed above. But even if there is only one family member left to make a healthcare decision, making such a decision can put a significant amount of stress on that person. For example, having to decide to take a loved one off life support can be one of the most difficult decisions a person will ever have to make. A living will can take that pressure off your loved ones.
3. You Are Undergoing Surgery in the Future
If you are undergoing surgery in the near future, regardless of your age, it is always a good idea to have a living will on record. There is a much better likelihood that your wishes will be carried out in the event of an unexpected medical emergency during the surgical procedure.
For more information please contact via email Steven A. Loeb, Esq. or by phone at 973-538-4700 ext. 229.
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