Employees of many Hoosier hospitals ask patients the same question during the admission process every day, “Do you have a living will?” This may surprise people, but a patient’s answer to that question does not matter because when a living will arrives at the hospital, it is “dead on arrival.” This article explains why Indiana’s living will declaration form is a failed social experiment and suggests the more appropriate questions that hospitals should ask incoming patients and patients’ families.

The idea of a living will emerged in the late 1960s from controversies about whether to end life support for terminally ill patients. National news headlines about end-of-life court battles over unconscious patients like the 1975 Karen Ann Quinlan litigation in New Jersey pushed lawmakers to allow people to decide ahead of time what should happen in end-of-life situations. According to Charles P. Sabatino’s article, The Evolution of Health Care Advance Planning Law and Policy, 41 states had passed living will statutes by the end of 1986.

The living will concept was supposed to allow a person to sign a living will as an advance instruction to health care providers about whether to try to keep the person alive in an unavoidable end-of-life situation. Although the definition of end-of-life varied slightly from one state to another, the laws generally described it as: (1) the patient has an incurable injury or illness, (2) the patient is going to die soon, and (3) lifesaving procedures will merely slow down the dying process.

The Indiana living will statutes include the actual form of living will, with signature lines appearing in the statute for the individual and witnesses to the individual’s signature. The living will’s weakness appears at the beginning of the living will documents second paragraph, which 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procedures would serve only to artificially prolong the dying process, I direct that such procedures be withheld or withdrawn, and that I be permitted to die naturally with only the performance or provision of any medical procedure or medication necessary to provide me with comfort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,…

More than a quarter century after Indiana’s living will enactment, mounting evidence has revealed that doctors rarely, if ever, sign the kind of written certification that the living will law requires before the living will can do its job. In fact, is possible that no currently practicing Indiana doctor has ever signed such a certification.

If Hoosier doctors do not certify in writing that their patients fit the living will requirements, the patients’ living wills are worthless documents awaiting written certifications that will never arrive. If that is true, then the patients’ living wills have given them and their families false confidence about the reliability of their end-of-life decisions.

We suggest that hospitals stop asking whether patients have living wills, and begin asking more meaningful questions about health care powers of attorney, appointments of health care representatives, and Physician’s Orders for Scope of Treatment (POST). Patients can make health care powers of attorney and appointments of health care representatives to appoint health care decision makers for them before medical crises arise. Chronically ill and terminally ill patients can coordinate with their doctors to establish POST forms that specify the same kinds of things that living wills are supposed to accomplish, but with the doctor signing the POST forms in advance. For more information about health care powers of attorney, appointments of health care representatives, and POST forms, see these previous articles on our blog site:

Non-Traditional Households Require Special Planning

Too Young to Plan? Think Again!

Indiana’s New and Improved POST Form

Plans for Final Illness, Death, and Human Remains Disposition

Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers and active members of the Indiana State Bar Association and National Academy of Elder Law Attorneys. Both lawyers are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois. Jeff is also a registered civil mediator, a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation;  a member of the Illinois State Bar Association and the Indiana Association of Mediators; and he was the 2014-15 President of the Indiana State Bar Association.

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