lang: en_US

How are decisions made for an incapacitated person without a living will?

Ali Katz


Q:        How are decisions made for an incapacitated person without a living will?

--Concerned family member

A:         Dear Concerned:

Advance directives like living wills express someone’s wishes and preferences for medical treatment if they are unable to provide consent or refusal (e.g. due to coma or unconsciousness). A living will specifies the life-sustaining measures—such as life support or tube feeding— to be taken if a person is incapacitated without a reasonable expectation of recovery.

The law allows competent adults to refuse medical treatment, including life-sustaining measures, however if a person is unable to clearly state their wishes at the end of their life, treatment cannot be refused. So how are such decisions made when a person in this situation does not have a living will?

No one person automatically assumes the right to make decisions regarding life-sustaining measures for another. In such a situation, a loved one can step forward and serve as a Health Care Representative. Health Care Representatives can make certain decisions about life-sustaining care, but if there is conflict over who should fill this role, decision making can become quite difficult. This process can be lengthy and, if not resolved through alternative dispute resolution, could end up in court.

Despite the tragedy of such a situation, many families have been left responsible for life-sustaining care costs (which can be staggering). They can also end up having to take the matter to court to get the authority to cease life-sustaining measures.

State laws on life-sustaining treatment and advance directives vary quite a bit. Thus, it is important to consult with an experienced attorney who can help you draft a living will that will state your wishes. Communicating your wishes to a family member or drafting them in an informal document may not be enough to legally ensure your wishes are carried out.

A living will is the best way to ensure your wishes for life-sustaining measures are respected and your family is not left making difficult decisions on your behalf. Have an attorney help you draft a legally sound living will and provide copies to the executor of your will, your loved ones and your health care providers.

Despite the importance of living wills, many people are unaware of the undue burden placed on family members to make decisions in dire situations. Don’t leave your family members at this risk. Make difficult decisions now to spare your loved ones from having to make them while grief-stricken. Start by sitting down with a Personal Family Lawyer®. They can walk you through creating a legally sound living will that will express your wishes at the end of your life.