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Living Will

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In Pennsylvania, a living will is a written document that describes the kind of life-sustaining treatment you want or do not want if you are later unable to tell your doctor what kind of treatment you wish to receive.

The Five Wishes booklet is a great resource for documenting your wishes for care. It includes a living will.

It is important for you to know that Pennsylvania's living will does not recognize all types of instructions which might be contained in a person's living will. Rather, instructions must relate to situations where medical treatment would serve only to prolong the process of dying or to maintain you in a state of permanent unconsciousness. A living will would apply only in cases where your condition or illness is terminal or you are permanently unconscious. So, for example, Pennsylvania does not specifically recognize living wills which direct a health care provider to withhold medically beneficial, non-futile care.

You should also understand that a living will is not a last will and testament. A last will and testament tells your survivors what to do with your property after your death.

Who can make a living will?

Any competent person can make a living will who is at least one of the following:

  1. At least 18 years old
  2. A high school graduate
  3. Married

A living will only takes effect when:

  • Your doctor has a copy of it; and
  • Your doctor has concluded that you are incompetent and therefore no longer able to make decisions about the medical care you wish to receive; and
  • Your doctor and a second doctor have determined that you are in a terminal condition or in a state of permanent unconsciousness.

You may, but do not have to, name a person in your living will to be your surrogate (substitute decision maker). If you cannot make your treatment decisions, this person will make sure that your living will is followed and will also make treatment decisions if a situation is not covered by your living will. If you name a substitute decision maker, it should be someone who knows your wishes.

Also, if you name a durable power of attorney for health care, he or she should be the same person as your named surrogate to avoid conflicts. (Our living will form does not have a place for a surrogate, but you may write one on the form if you wish.)

Be sure to name someone who knows your wishes and who you trust to follow them.

What does it mean to be "incompetent"?

"Incompetence" means "the lack of sufficient capacity for a person to make or communicate decisions concerning himself either due to physical or mental impairment." The law allows your doctor to decide if you are incompetent for purposes of implementing a living will.

What should my living will contain?

There is no single correct way to write a living will. Your living will may have additional or different directions than the sample living will. Your living will is not valid, however, unless you have taken the following steps:

  • You must sign your living will. If you are unable to do so, you must have someone sign it for you; and
  • Two people who are at least 18 years old must sign your living will as witnesses. Neither of those witnesses may be the person who signed your living will on your behalf if you are unable to sign it yourself.

You should also date your living will, even though the law does not require it. In Pennsylvania, you are not required to have your living will notarized, however, if you are contemplating using the document in another state you should find out if the other state requires notarization.

What if I already have a living will?

Pennsylvania's living will law went into effect on April 16, 1992. You should review any living will drafted before that date to see that it meets the requirements.

To whom should I give a living will?

You should give a copy of your living will to your doctor, hospital, nursing home or other health care provider. When you enter a hospital or nursing facility, the law requires your doctor or other health care provider to ask if you have a living will. If you give a copy of your living will to your doctor or other health care provider, that document must be made part of your medical record. You should also give a copy to an immediate family member or a close friend, and especially to the person named as your surrogate.

What if my doctor or health care provider refuses to follow the directions in my living will?

Your doctor and any other health care provider must inform you if they cannot, in good conscience, follow your wishes or if the policies of the institution prevent them from honoring those wishes. This is one reason why you should give a copy of your living will to your doctor or to those in charge of your medical care and treatment. If you are incompetent when you are admitted for medical care and have named someone in your living will to make decisions for you, that person must be informed if the wishes contained in your living will cannot be honored. If you have not named anyone in your living will, your family, guardian or other representative must be informed that your living will cannot be honored.

The doctor or other health care provider who cannot honor your wishes must then help transfer you to another health care provider willing to carry out your directions--if they are the kind of directions which Pennsylvania recognizes as valid. It is advisable, as soon as possible after you have written your living will, to make sure your doctor will follow your wishes as stated in your living will.

Is a living will effective when I am pregnant?

Pennsylvania law generally does not permit a doctor or other health care provider to honor the living will of a pregnant woman who has directed that she not be kept alive. The terms of such a living will may be honored, however, if the woman's doctor determines that life-sustaining treatment: 1) will not maintain the woman in a manner that will allow for the continued development and birth of the unborn child; 2) will physically harm the pregnant woman; or 3) cause her pain which could not be relieved by medication. If your living will is not honored because you are pregnant, the Commonwealth must pay all usual, customary and reasonable expenses of your care.

What if I change my mind after I have written a living will?

Pennsylvania's living will law states that you may revoke a living will at any time and in any manner. All that you must do is tell your doctor or other health care provider that you are revoking it. Someone who saw or heard you revoke your living will may also tell your doctor or other health care provider. You can also change or rewrite your living will. If you change your mind after you have written down your instructions, you should destroy your written instructions and all copies or revoke them and write new ones. You should also consider telling everyone who participated in your decision-making process that you have changed your mind and give them a copy of any new instructions to your doctor, health care provider, and anyone else who had a copy of your old instructions.