The Living Will

 What is a Living Will?

A Living Will is a document by means of which a person states his or her wishes regarding the types of medical intervention and treatment that should or should not be applied if the individual becomes mentally incompetent or unable to meaningfully communicate with others.

It is a legal document which should be signed by the person making it in the presence of witnesses. A properly worded Living Will should include a special declaration to be signed by the witnesses. The witness declaration should attest to the state of mind of the person making the Living Will as well as circumstances surrounding that person's signing of the Living Will.

It should always be drawn up in the native language of the person signing it. The failure to do so will leave the proverbial door wide open for disqualifying it based on a lack of a full understanding of the Living Will's directions. If necessary, a certified translation of the Living Will can always be obtained for use in a jurisdiction where a different language prevails.

A properly worded Living Will should employ accepted medical terminology to describe the physical and mental conditions that trigger any of its provisions. There are two reasons for this. First, to make the intention of the Living Will unambiguously clear to the attending physicians. Second, to provide the Living Will with the aura of credibility that will result from utilizing the language of the medical profession.

Both physicians and medical institutions are painfully aware of the high cost of defending against legal action for medical malpractice. The cost of medical malpractice insurance has skyrocketed in the past decade largely as a result of the continuing increase in malpractice litigation. So far, the situation in Israel is not nearly as extreme as in the United States. However, the medical and legal professions in Israel now recognize that court actions for medical malpractice have become a fact of life. Accordingly, it is advisable to include a provision in the Living Will providing limited legal immunity to doctors and hospitals against a legal action for malpractice for simply following the provisions of a Living Will. Such a provision will not preclude legal action for provable malpractice but will discourage the filing of an otherwise frivolous lawsuit.

Living Wills in Israel do not as yet enjoy the degree of overt recognition accorded them in many other countries. That does not mean that they are ignored. One can only wonder what the fate of former Prime Minister Sharon might have been had he had a Living Will drawn up for him. His case is the most well known example in Israel of what can happen when a person's physical existence is artificially prolonged by medical intervention after a traumatic medical event results in a complete loss of the quality of life.

Presenting a Living Will to an attending physician can often tilt the scale in favor of non -intervention in the case of a patient whose life might otherwise be artificially prolonged. If however a given medical institution decides to ignore the provisions of a Living Will, the way is open to the family to seek judicial relief in Court. If a judge is convinced by expert medical testimony that a patient's life is being artificially prolonged contrary to the patient's Living Will, the judge has the legal authority to order compliance. Indeed, the threat of such legal action has been known to cause a medical institution to reverse its position and comply with the Living Will.

The Living Will has another critically important function. It can act to remove the responsibility for life and death decision-making from relatives and particularly children whose emotional connection may prevent them from making a decision that the parent wants. By providing a clear statement of the circumstances under which a parent would not want his or her life artificially prolonged, the child is relieved of the emotional conflict and guilt that might otherwise arise from his or her having to take the responsibility for the decision making. Likewise, bitter conflict between siblings may also be avoided when the Living Will makes the parent's position perfectly clear.

In the final analysis, a Living Will is very much like any insurance policy that we purchase. We hope that the money we pay for the insurance premiums will be, in effect, wasted and that an insurable event will not occur. No responsible adult would drive a car without proper insurance coverage or leave his or her valuable possessions uninsured. So too with a Living Will; this document should be regarded as an essential element in one's personal legal planning.

This article is for informational purposes only and is not a substitute for specific legal advice based on individual consultation.

Attorney Frank Elliot Kahn, TEP, has practiced law in Israel and the United States for over 35 years. For further information, see his listing in ESRA's Classified Directory.