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THE LIVING WILL

The Living Will is a legal document that contains information based on deathbed decisions. In other words, it contains the person’s wishes as to whether or not life-prolonging measures be discontinued when there is no hope of he/she pulling through.

The Living Will contains the person’s declaration that if he/she is certified to (a) be in a terminal condition, (b) to be permanently unconscious, (c ) is conscious but has irreversible brain damage and will never regain the ability to make decisions and express his/her wishes, or (d) that there is no reasonable possibility of he/she being restored to a cognitive, sapient state, then life-sustaining procedures and maintenance medical treatment be withheld and withdrawn.

The person making the Living will must be 18 years old and mentally competent at the time he/she executes the living will, but incompetent to participate in making the decision when the time comes.

The person’s spouse, heirs, persons with claims against the person’s estate, or the attending physician may not be witnesses to the living will. The document is signed in the presence of 2 witnesses and a notary public. The notary public attests that the client is at least 18 years old, and that he/she signed the Living Will as a free and voluntary act.

The Living Will should not be confused with a Durable Power of Attorney for Health Care which appoints someone to make health care decisions for the person. The Living Will is really a confirmation of the person’s wishes as set forth in the Health Care Power of Attorney. However, both documents are necessary. The law provides that to the extent that a Durable Power of Attorney conflicts with a Living Will, the Health Care Power of Attorney controls.

It is usual that when a client comes to the attorney’s office for a Last Will and Testament, that a Living Will and a Durable Power of Attorney For Health Care are also prepared. It is mandated in most hospitals that if a patient does not have his/her own Living Will to present, then they will furnish a form of Living Will for the patient to sign. It is suggested that copies of both the Living Will and the Health Care Power of Attorney be kept in the person’s primary care physician’s medical records of that person.

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