What Happens If You Don’t Have a Living Will?
By: Barry E. Haimo, Esq.
March 22, 2021
Designating a health care surrogate is incredibly important. After all, this is the person who will make important medical decisions for you if you become incapacitated due to injury, illness, or advanced age.
But how does this person know how you would have wanted them to act?
Generally speaking, that’s where a living will comes in. This is the legal document you use to clarify which types of medical treatment you want to receive in certain situations – and which ones you don’t. For example, if you don’t want your life artificially prolonged through the use of machines, your living will is where you let these wishes be known.
But what happens if you don’t have a living will?
Problems That Can Arise When You Don’t Create a Living Will
Most of you have probably heard of Terri Schiavo. From 1990 through 2005, she was artificially kept alive in a persistent vegetative state. Throughout this time, her loved ones waged a battle over what was to be done with her.
Terri’s husband argued she should be taken off machines — because she told him that was what she wanted. Her parents said Terri would not have wanted that.
But there was no legal way to know for sure because Terri never created a living will. So both sides fought a legal battle for 15 years to determine whether she would live or die.
Obviously, hers was an extreme situation. Sadly, though, it is not unique.
What can happen if you don’t have a living will? Here are just a few examples:
Doctors are required to keep you artificially alive
In order to take artificial life support away, the law demands evidence that is clear and convincing. Generally, this means a living will stating that you do not want artificial life support used to keep you alive. Even if you verbally tell people you don’t want life support, this may not be enough.
You may be given treatment that goes against your beliefs
For some people, life support is a very individual decision. For others, it is a matter of religion or faith. Being kept artificially alive may even be offensive to you, but without clear proof that you wouldn’t have wanted it, doctors’ hands are tied.
There will be no way to differentiate treatment
A living will is where you can spell out exactly what kind of treatment is okay and what isn’t. Without one, you have no voice. And this can go both ways. For example, say you’re okay with minor life-sustaining treatment. But when talking to family members, you say you don’t want to live “hooked up to machines.” In some cases, their combined statements may be enough to get doctors to completely remove life support.
Loved ones may fight
Without a straightforward record of what you want, family members and other loved ones must make incredibly difficult decisions. What do they think you would have wanted? Did you tell your husband something that is at odds with the beliefs of your parents? Disagreements and arguments can come up, and may even lead to a prolonged legal battle. This is something you definitely don’t want the people you care about to have to go through.
When there is no living will, you essentially lose your voice in your end of life care. Don’t put yourself or your loved ones through this. Clearly articulate your wishes in a living will, then sit down and talk about those wishes with everyone you care about. This is the only true way to make sure you get a say in what happens to you once you are no longer able to make decisions.
Originally published 2/4/2016. Updated 3/22/2021.
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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