Divorce and Your Will

Divorce and Your Will

living will is a legal document in which you express your wishes for the type of medical treatment you do or do not want in the event you suffer an illness or injury that leaves you in a particular type of medical condition. A living will typically only applies to what are considered life-prolonging procedures and only covers certain serious medical conditions that are defined by law.

Depending on the state, laws generally provide for a living will to cover one or more of the following types of medical conditions:

  • a terminal condition—typically defined as a condition caused by injury, disease or illness from which there is no reasonable probability of recovery and that, without treatment, can be expected to cause death;
  • a persistent vegetative state—typically defined as a permanent and irreversible condition of unconsciousness in which there is no voluntary action or cognitive behavior and an inability to communicate or interact purposefully with the environment; and
  • an end-stage condition—typically defined as a condition caused by injury, disease or illness that has resulted in severe and permanent deterioration, indicated by incapacity and complete physical dependency, and for which, to a reasonable degree of medical certainty, treatment of the irreversible condition would be medically ineffective.

If at least one of the authorized conditions exists and you are either unable to make decisions or are unable to communicate your decisions, a living will expresses your decisions about whether you want to receive life-prolonging procedures. A typical definition of a life-prolonging procedure is:

any medical procedure, treatment or intervention, including artificially provided sustenance and hydration, that sustains, restores or supplants a spontaneous vital function.

The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain. To cover any other medical procedures, you would need a designation of health care agent.

Therefore, the following statements are true:

  • As long as you are able to make and communicate decisions about your care, a living will has no effect.
  • If at least one of the medical conditions described in your state's laws does not exist, a living will has no effect.
  • If the medical procedure at issue is not a life-prolonging procedure, a living will has no effect.

If you have a health care power of attorney that authorizes your agent to make decisions about life-prolonging procedures, you may wonder why you need a living will. The answer is that a living will can help your agent make decisions based on what you want. Your agent's duty is to make decisions based on what he or she reasonably believes are your desires. Therefore, at some point, you need to tell your agent your desires in certain situations. This can be orally or in writing.

If there is no written direction, your agent will rely on conversations you had in which you expressed things such as what you would want if you were terminally ill or in a permanent vegetative state, as well as anything you may have said about your religious or philosophical beliefs. Through a living will, you can leave more concrete evidence of your wishes. The following example will show how this can be important.

Example: Jane and Bill are married. Jane has told Bill that if she were ever in a terminal condition or a permanent coma (i.e., permanent vegetative state), she would not want to be kept alive with any machines or feeding tubes. Jane is in an automobile accident that leaves her in what her doctors have deemed a permanent vegetative state.

After ten years of keeping her alive with a feeding tube, Bill finally decides that it is time to honor Jane's wishes and withdraw the feeding tube. Jane's parents, who cannot stand the thought of losing their daughter, and therefore refuse to accept that she is not going to recover, file a lawsuit to stop Bill from having the feeding tube removed. Jane's parents claim they have evidence that Jane never told Bill about her attitude toward the type of situation she is in.

It could take years for this case to wind its way through the various trial and appellate courts, while the feeding tube remains. If Jane had executed a living will, there would be little room to question her desires.

Some states also allow you to designate a person to ensure that your wishes are carried out. However, unlike a health care power of attorney, a living will does not allow the person you designate to make health care decisions for you. It only allows that person to insist that your wishes expressed in the living will are followed. However, as discussed, a living will can be very helpful to support decisions made by your health care agent.