What is a living will? Essentially it is a legal document that states our wishes concerning end-of-life medical treatment.

The legality of the living will documents is regulated by state law. In some states, they are called Advance Directives. Given the gravity of the subject, legal protections surround such documents. In other words the document must meet strict legal standards, otherwise it may not be followed.

Living wills or advance directives were virtually unknown prior to the early 1990's. In 1990 the U.S. Supreme Court decided the case of Nancy Cruzan. The court ruled that a person has the constitutional right to accept or reject medical treatment, even if it is life-saving treatment. This right is in effect even if the patient cannot communicate. It is at this point that the patient's wishes or instructions should be delivered to healthcare providers. But by who and in what fashion? After all, a life or death decision must be made. While the decision is individual and private, the government has a role. The state, in its role as protector of those who cannot defend themselves, may demand "clear and convincing" proof of the patient's wishes. A legally drafted living will according to the requirements of state law provides clear proof of a patient's wishes.

What happens if a person does not have a living will or advance directive? The Florida case of Terry Schiavo shows what may happen when a patient does not have a legal document containing wishes regarding end-of-life care.

Michigan does not have a living will statute. Michigan has an advance directive statute. A living will is essentially self executing. A person writes out his or her wishes about end-of-life treatment and that document is followed by doctors. The Michigan advance directive is called a "Designation of Patient Advocate."

The Michigan designation of patient advocate must meet the requirements of a complex and detailed statute. A patient advocate may make decisions for the patient if two doctors determine that the patient cannot participate in informed decision making. The designation may contain a statement of the patient's desires on care, custody, and medical treatment or mental health treatment, or both. The patient must acknowledge that such instructions may result in death. The document must be signed by two witnesses and contains a list of who may not be a witness. Witnesses may not be immediate family, devisees of the patient's will, those who work for a life or health insurance provider, the treating physician or the treatment facility where the patient is at the time the patient advocate acts. The patient advocate may not act without signing an acceptance that contains information required by law.

In addition to a designation of patient advocate, a person should have a general healthcare Power of Attorney. That way the advocate can help out at anytime and not have to wait until end of life before assisting.

Article by Jim Schuster, Certified Elder Law Attorney