Kantor &  Linderoth, Esqs.

The Living Will

  • What is a Living Will?

It is a statement, signed by you and witnessed, which tells your family and your doctor your directions about life-prolonging medical procedures when your condition is hopeless and there is not change of regaining what you consider to be a meaningful life.

  • Why do you need a Living Will?

Medical advances can now "keep you alive" when your mind is gone and your body has stopped functioning naturally. Under Constitutional and common law, you have the right to refuse treatment. A Living Will gives you an opportunity to express your wishes in advance, since you may not be able to make them known when it becomes important to do so.

  • Why should I sign a Living Will now?

Complications and terminal care decision making may arise if you become mentally incompetent or physically incapable of expressing your own desires. By completing a Living Will no and discussing its provisions with your doctor and others close to you, you are not only insuring that your own wishes will be followed, you are relieving others of the legal and/or emotional burden they will bear if they must make decisions for you.

  • What are "life-prolonging procedures"?

These may include hooking you up to a machine when you cannot breathe on your own, performing operations or prescribing antibiotics that cannot realistically increase your chances of recovery, starting your heart mechanically when it has stopped beating, or feeding you by tube. You may, if you wish, specifically list on your Living Will, the procedures you would or would not want administered. (If you do not include specifics, the general directions on the declaration will stand for your wishes regarding treatment under the circumstances described. Your doctor and others will be informed that you want only comfort measures.)

  • What are "comfort measures"?

Medication, nursing care and other treatment administered for the purpose of keeping you as comfortable and free from pain as possible.

  • Is my Living Will legally binding?

The Living Will has been upheld in the Courts in New Jersey. Legal authorities believe that a Living Will is enforceable in all States as an assertion of your common law right to bodily self determination, and your Constitutional right to privacy. The Living Will is the best protection available to insure your right to refuse medical treatment. In fact, a doctor or hospital treating you against your wishes may be liable for damages.

  • Can I name someone else to make medical treatment decisions for me?

Yes, The Living Will has a provision for the appointment of a "proxy" to make medical decisions for you in accordance with your wishes at a time when you cannot make them for yourself. Anyone who is willing may serve in this capacity, but it is important that you discuss your Living Will with the designated proxy before or at the time you sign your Living Will.

  • Must I have a Living Will notarized?

It is recommended that the Living Will be executed in the same manner as a Will. Therefore, it should be notarized, as proof of the seriousness of your intent.

  • Who should witness my Living Will?

Your signature on the Living Will should be witnessed by adults who are not related to you by blood, and who are not designated as your proxy. These witnesses provide "proof of execution", meaning that they witnessed your signature and that you signed of your own free will. Conflict of interest might be implied if the witnesses are related to you or are possible heirs of your estate.

  • Once I have signed the Living Will, how can I make sure it will be enforced?

The first and most important step is to discuss your Living Will with your doctor. Your doctor should agree with your decision to sign the document and he or she should be willing to place a copy in your medical file, regardless of his or her personal sentiments. If your doctor is unwilling to include the Living Will in your medical records, it may be advisable to seek another, more understanding doctor. The second step is to take about your Living Will with family members, your attorney, clergyman, or anyone else who may be called upon to make decisions when you are dying.

  • If I refuse all life support measures, will my death be considered suicide?

No. Your death will be deemed to have been caused by your disease or condition, not self induced.

IMPORTANT NOTICE

THIS ARTICLE HAS BEEN DESIGNED AND PRESENTED BY THE FIRM OF KANTOR AND LINDEROTH, ESQ. IT IS INTENDED TO PROVIDE A GENERAL FORUM FOR DISCUSSION OF THE LEGAL ISSUES CONTAINED THEREIN. THE INFORMATION PROVIDED HEREIN IS NOT INTENDED TO BE PROVIDED AS LEGAL ADVICE, WHICH CAN ONLY BE APPROPRIATELY PROVIDED AFTER A FULL DISCUSSION WITH AN ATTORNEY WHERE THE FULL FACTS OF A PARTICULAR SITUATION ARE REVIEWED.

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