The trend of buying do-it-yourself legal documents online is becoming more widespread, as a means of reducing attorney fees and saving time. As a result, the prevalence of people using do-it-yourself legal documents and not knowing exactly what they have signed up for — or the unintended consequences — also increases.
We came across the Living Will page on the Living Trust Network’s website and discovered that site has recently affiliated with Legal Zoom. As a proponent of keeping legal costs affordable, we do not have a problem with the concept of automating and streamlining the process of creating legal documents from templates, nor do we have any grudge to bear against either of these businesses, or others like them, which provide information and tools that can helpful when properly understood and used.
What You Don’t Know Can Kill You
However, we do take issue with selling template products that have significant legal ramifications – and life and death implications – without telling the whole story. We are not comfortable having to decide now in black and white terms about unknown medical situations, perhaps many years away.
Can you really decide today about whether or not you will want "artificially supplied nutrition and hydration" for a condition-and-situation-to-be-determined? Do you really want the final decision of whether or not to implement the terms of your living will made at the spur of the moment by a hospital staff member-to-be-determined?
According to Jeanette Pavini’s Buyer Beware column Pros and Cons of Do-It-Yourself Legal Work on MarketWatch.com, “When it comes to sites that offer online document and forms, it’s important to remember that getting the documents wrong may actually be worse than if you didn’t have a legal document at all.” Caveat emptor indeed.
Living Will is Statement of Your Intent to Die
A living will is a subjective statement of one’s intent to die. It is typically interpreted differently by different staff members of a hospital, even on the same floor. It allows withdrawal of health care without consultation with one’s health care power of attorney. And no policing mechanism exists. Bad faith must be proven for any fault to be assigned in the life-or-death decision-making process. Living wills have been used to withdraw life support for even competent people, as was recently the case for Paul G. Smith.
Health Care Power of Attorney Superseded by a Living Will
Unrelated to living wills are health care powers of attorney, through which we appoint decision-makers to make critical decisions for us to treat or not to treat, when we are incompetent. This appointment of trust is a fiduciary duty that hospitals and doctors must respect, unless a living will has been signed.
If a living will has been signed, then your health care power of attorney can be second guessed. With the implementation of the Affordable Healthcare Act (ACA/Obamacare) and the so-called "death panels," living wills will be an important component of many more treatment decisions, which will lead to surprises for those who do not understand how easily power — and even life — can be surrendered through naivety.
Right Decision — Right Time — Right Person
To prevent someone other than your chosen healthcare decision-maker from making those important decisions when you are admitted to a hospital or long-term care/rehabilitation facility, you should always personally present a copy of your health care power of attorney document to the doctor in charge of care, in front of a witness you bring.
These days, with the prevalence of cameras in phones, it is not difficult to record the event to emphasize that the decisions about your healthcare treatments will be made and enforced by you, your family, and your trusted advisers. When you sign a living will, you may lose those decision-maker rights and not be allowed to live long enough to change your mind.
For more information on this topic, read more articles about Living Wills.