What are the disadvantages of living wills?
Everyone should have a living will. But some people try to use a living will by itself to prepare for incapacity, and that can lead to problems.
Three Big Disadvantages of Living Wills
There are three main disadvantages to using a living will:
Living wills have a limited scope;
Living wills rely on physician compliance;
Living wills are not always given to health care providers.
In this article, each of these disadvantages is discussed. I then explain how Floridians can overcome these disadvantages to properly prepare for incapacity.
Living wills have a limited scope.
A living will only applies to a limited number of situations. Specifically, it only applies when a medical treatment or procedure is required to sustain your life. Put more simply, it is for situations such as being in a coma or vegetative state. However, a living will does nothing to guide a physician in any other situation.
Living wills rely on physician compliance.
Once the living will gets pulled out, you are not in a position to explain it or enforce it. Instead, whether the living will gets enforced depends on the physician. The physician makes the call about whether you are incapacitated enough for the living will to be followed. This is problematic, as some physicians will be reluctant to make the call.
Living wills are not always given to health care providers.
A living will does not do any good if it cannot be found or if no one knows about it. Unfortunately, this is what happens sometimes. If you draw up a living will and then stick the document in a file somewhere, it will do no good when you are incapacitated. Keep in mind, once you are incapacitated, you cannot explain to anyone that you have a living will and where to find it. Thus, living wills are sometimes useless simply because no one knows to consider them.
How can I overcome these disadvantages?
Each of these disadvantages is overcome simply by designating a health care surrogate in addition to creating a living will. A health care surrogate is someone with medical power of attorney, a person able to make medical decisions for you. This decision-making ability applies to far more situations than a living will. And unlike a living will, it does not rely on a physician; rather, it relies on the person you name as your surrogate. Finally, a surrogate tends to show up when you are incapacitated and will probably bring your living will with them. To designate someone as your health care surrogate, set up a meeting with your estate planning attorney.