Is a living will a medical contract or a legal contract?
On this blog I’ve often raised the problems with having a non-lawyer do legal work – are there the same problems if lawyers are doing quasi-medical work? Assuming that input from medical professionals is warranted, is consultation with a doctor required or will a “lesser” medical professional do?
For a long time, living wills have been associated with the legal world as part of creating their estate plan. Typically clients sign a will or trust, financial powers of attorney, and health care documents. Those are the foundational planning documents.
Consider this quote:
“Your lawyer shouldn’t be writing a medical contract any more than you’d want your doctor to write a legal contract,” Dr. Brokaw said.
It comes from a recent article from the New York Times Personal Health blog discussing the shortcomings of living wills, particularly in the way that doctors are almost never consulted.
Of course the quote assumes the conclusion that living wills are not legal contracts (and are medical contracts). It’s an interesting debate whether instruction directives are legal contracts or medical contracts or both. I suppose I find it interesting because the answer implicates who should be assisting you with drafting and signing them.
Living wills are distinct from “do-not-resuscitate” orders because they discuss specific kinds of end of life care (hydration and nutrition, the concept of brain death, etc.) and the legal world has adopted them because they are challenged, enforced, and interpreted by courts (like so many contracts and other documents). More specifically, lawsuits are housed in the courts that deal with estate administration because the dispute deals with issues of equity (not issues of law, which means arguments that can be resolved by paying money).
Certainly there are medical implications to making decisions that might fall outside the expertise of lawyers – as highlighted in the NYT article. However, many of those issues are matters of ignorance vs. knowledge – not of professional counsel. What I mean is – once you understand the choices available there aren’t many professional-level decisions that drive whether you have an “medically enforceable” documents. Failing to involve medical professionals means that you may not have a well-informed living will, which is a different problem than not having a medically enforceable living will.
On the other hand, failing to involve a lawyer can make your living will (pardon me) dead on arrival. For instance, in New Jersey the legislature has enacted default forms for health care powers of attorney and living wills (or as the politicians call them “instruction directives”). You can download them off the Internet and fill them out on your own – however to be legally effective they need to be signed, witnessed and notarized in a particular manner. Failing to do so makes them no more effective or enforceable than doodles on a cocktail napkin. In addition, experienced estate planning attorneys can counsel you on how certain questions have been resolved by the courts.
For me, the answer is clear. Given that the documents are interpreted by courts of law (versus, say, an ethics committee at a hospital), living wills are legal documents that should be drafted by lawyers — and perhaps informed by doctors. For clients who have diagnoses of incurable illnesses (like MS or Parkinson’s), we discuss specific treatment options and spend a lot of time counselling on those topics.
In the end, though, it is my job as their estate planning attorney to make sure they have a document that (1) is in place and (2) works. (By the way, we do a lot better than the article’s recommended 10-year review of living wills. Clients in our care program revisit this document every year.)
Posted by Victor Medina
Medina Law Group and The New Jersey Estate Planning Center