This photo of a hospital patient room with a living will declaration in a trash can expresses our healthcare advance directives preference.

If you needed inpatient hospital care or outpatient surgery since 1992, someone probably asked whether you had a living will. While that question has made generations of people think they needed living wills, did they really need them? What’s a living will’s purpose? Does it serve that purpose well? In this article, we’ll explain living wills and the reasons behind our healthcare advance directives preference.

Life Support Wars

Karen Ann Quinlan

In 1975, Pennsylvania resident Karen Ann Quinlan slipped into a persistent, irreversible coma after consuming Valium and alcohol while crash dieting. After her parents won a nationally publicized court battle to remove her ventilator in 1976, Karen lived comatose without the ventilator until her death in 1985.

Nancy Cruzan

Two years before Karen Quinlan’s death, a vehicle crash ejected Missouri resident Nancy Cruzan into a ditch full of water in 1983. Although she had no vital signs and lacked oxygen for 12-14 minutes, paramedics got Nancy to begin breathing again. However, Nancy never regained consciousness, and her father fought to remove her life support until the US Supreme Court granted his request in 1990.

Terri Schiavo

Four months before the US Supreme Court ruled in the Cruzan case, Florida resident Terri Schiavo stopped breathing and suffered extreme brain damage after her 1990 heart attack. Terri became a national political pawn in an epic life support battle between her husband and her parents from 1998 until her death in 2005.

Living wills and Healthcare Advance Directive initiatives

Indiana and most other states tried to clarify some healthcare consent issues in the 1970s, 1980s, and 1990s, including a set of laws called the Uniform Health-Care Decisions Act. The Act included laws allowing people to make living will declarations and advance healthcare directives.

Living Wills

 A living will states medical conditions when a person wants to be removed from life-support. To prevent the improper removal of a patient’s life-support, a physician must decide whether the medical conditions stated in the patient’s living will exist.

Indiana’s Living Wills

Indiana’s living will declaration statute specifies the language and contains the form of a living will declaration including lines for people’s signatures. You could make a living will by printing a copy of the statute, completing the appropriate blanks, and signing it with two witnesses also signing it in each other’s presence.

Indiana’s living will form has remained almost completely unchanged since 1993. It begins with a statement, “I, _________, being at least eighteen (18) years of age and of sound mind, willfully and voluntarily make known my desires that my dying shall not be artificially prolonged under the circumstances set forth below…”

The form’s next section says (with our emphasis added):

If at any time my attending physician certifies in writing that:

(1) I have an incurable injury, disease, or illness;

(2) my death will occur within a short time; and

(3) the use of life prolonging procedures would serve only to artificially prolong the dying process, I direct that such procedures be withheld or withdrawn, and that I be permitted to die naturally with only the performance or provision of any medical procedure or medication necessary to provide me with comfort care or to alleviate pain, and, if I have so indicated below, the provision of artificially supplied nutrition and hydration.

Indiana’s Living Will Logical Defect

The Indiana living will form’s logical defect lies in its requirement of a physician’s written certification of the three listed conditions before removing life-support. Unlike the law that creates the living will form, there is no law specifying a written certification form or giving any guidance on how a physician should make the written certification. So, an Indiana living will is useless until a physician makes and signs a written certification that satisfies all three requirements.

While a living will might give physicians and other healthcare providers some informal guidance, they couldn’t rely on it without making the required written certification. If we asked one hundred family practice physicians how many written certifications they had made, we wouldn’t expect any of them to know what we meant, much less tell us how many they had made. If a physician interpreted the written certification’s required findings personally, it’s hard to imagine a physician certifying in writing that:

  1. The physician is incapable of curing the patient;
  2. The patient is going to die soon regardless of the physician’s efforts; and
  3. Life-prolonging procedures would just drag out the patient’s death.

Thinking more broadly, what hospital would want a physician to make a written record of those findings?

Reasons for Our Healthcare Advance Directives Preference

We base our healthcare advance directives preference on that system’s broad coverage and flexibility. A healthcare advance directive authorizes a person to appoint friends or family members as healthcare representatives to make healthcare decisions when the person cannot make their own decisions. A healthcare advance directive can allow healthcare representatives to decide to remove or withhold a person’s healthcare even if the decision results in the person’s death.

Unlike the living will statute, Indiana law does not provide a standard healthcare advance directive form. However, the 2021 overhaul of Indiana’s Healthcare Consent Act directed the Indiana State Department of Health to make and distribute standard forms for all kinds of healthcare consent documents.

The 2021 healthcare consent law also allows you to make highly customized advance healthcare directives. While you can still appoint friends or family members to make healthcare decisions, you can also include the best parts of a living will. You can even restrict people you don’t want to be involved in your health decisions and include instructions about your funeral!

Conclusion

We encourage all healthcare providers to stop asking patients whether they have living wills and begin asking whether they have advance healthcare directives. We also encourage people to ask their estate planning lawyers for customized advance healthcare directives that express the people’s wishes about providing, withholding, and withdrawing healthcare. Finally, we hope everyone will share our healthcare advance directives preference.

MORE INFORMATION

For more information about living wills and advance healthcare directives, see our articles published at https://www.hawkinselderlaw.com/health-care-advance-directive/, https://www.
hawkinselderlaw.com/health-care-representative-power-of-attorney/
, and https://www.hawkins
elderlaw.com/will-versus-living-will/
. Find more information about other topics at www.hawkinselderlaw.com. You can also call us at 812-268-8777.

ABOUT THE AUTHORS

Jeff and Jennifer are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers, and active members of the Indiana State Bar Association and the Indiana Chapter of the National Academy of Elder Law Attorneys (NAELA). Jeff is also a member of the Illinois NAELA Chapter, a Fellow of the American College of Trust and Estate Counsel, and a member of the Illinois State Bar Association.

Both Hawkins are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois.

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