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Living Wills

Generally, a living will is a legal document that a person uses to make known his/her wishes regarding life extending treatments while suffering from an illness or in a permanent vegetative state.  It is essential for a living will to be effective that the person directing it should be incapacitated and can no longer express his/her wishes.

This legal instrument directs that a person’s life not be artificially extended by extraordinary measures when there is no reasonable expectation of recovery from extreme physical or mental disability.  The purpose of a living will is to make decisions regarding an incapacitated person’s life support and direct others to implement his/her desires in that respect.  This is also known as a directive to physicians or declaration of a desire for a natural death.

Most states have living will legislation.  Therefore, unless a legislative enactment recognizes the validity of living wills, the court cannot declare it a valid will.  In Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 288 (U.S. 1990), the Supreme Court considered whether the petitioners, a female in a persistent vegetative state and her parent-guardians, had asserted a constitutionally-protected right to refuse life-sustaining medical treatment.  It was concluded that the violation of an individual’s constitutional rights should be determined by balancing his/her liberty interests against the relevant state interests.

The execution of a living will constitutes relevant evidence of a patient’s intent not to have life-sustaining medical intervention, although the state legislature is silent about enacting a statute recognizing the validity of living wills.  Laws that govern living wills are different in each state.  Most states have enacted various statutes in relation to the removal or withholding of life-sustaining treatment from terminally ill persons and classifying them with titles such as the Death With Dignity Act, the Health Care Surrogate Act, the Health Care Decisions Act, or the Living Will Act.

The state living will statutes recognize the existence of the right of a non-terminal person to refuse treatment.  In re L.H.R., 253 Ga. 439 (Ga. 1984), the court stated that a competent adult patient has the right to refuse medical treatment in the absence of conflicting state interest and such a right rises to the level of a constitutional right which is not lost because of the incompetence or youth of the patient.

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