3 all-too-common flaws of living wills

By Liz Pulliam Weston

As a lawyer, Beverly knows that living wills don't work. But she still drafted the documents for her parents, allowing them to say what types of treatment they would and wouldn't want if they became incapacitated.

"So much of what lawyers do doesn't have a lot of legal force," said Beverly, a prosecutor who asked that her last name be withheld to protect her family's privacy, "but it makes people feel better to have it done."

The notion that living wills aren't ironclad is a shock to many laypeople, who hear the documents touted when end-of-life disputes make headlines. One of the best-known cases, that of Terri Schiavo in Florida, prompted a host of "don't let this happen to you" articles and broadcasts that prescribe living wills as insurance against long, painful court battles.

(Schiavo, 41, died in March 2005 after a drawn-out legal battle between her husband and her parents over removing her feeding tube. She had been severely brain damaged since heart failure in 1990. Schiavo didn't have a living will.)

The reality, according to legal experts and researchers, is that living wills don't ensure a person's wishes will be respected. Among the reasons:

They're too vague

Most people imagine a fairly straightforward situation: They're unconscious, hooked to a respirator and never expected to recover. The reality is that most end-of-life decisions aren't that black and white:

• You might be conscious, at least intermittently.

• You might have some functions, but not others. Schiavo, for example, could breathe but not eat or move much on her own; Robert Wendland, a brain-damaged California man at the center of another spouse-versus-parent battle, was able to catch a ball and perform other tasks.

• You might suffer a condition that doesn't have a clear prognosis. Even in Schiavo's case, the parents' doctors argued that some recovery was possible (although other doctors consulted in the case disagreed).

You also might suffer an entirely treatable ailment and have many months, if not years, of possible life ahead of you. Mary Dyer's husband, for example, may have been able to survive repeated bouts with pneumonia. But the Bend, Ore., woman said 10 years of slow decline from Alzheimer's and Parkinson's disease had left her longtime spouse unable to recognize or communicate with anyone -- "little more than a vacant-eyed vegetable buried alive in a steel-fenced hospital bed."

"The toughest day of my life was the Monday when I walked into the nursing home with written orders to remove the tubes inserting high-tech antibiotics," Dyer said. "I sat by his bedside from Monday to Friday . . . watching and listening to him slowly drown in his own body fluids.

"Others make different choices. One of my relatives was dying of cancer when she began bleeding internally. Although she had lodged a "do not resuscitate" order with her physician, she opted for treatment, guessing -- correctly as it turned out -- that she could live a few more months. Her quality of life may not have been stellar, but she lived to see her son graduate from college and managed to attend a celebration dinner a few weeks before her death.

Video: Good will hunting

Even living wills that detail many different scenarios can't possibly include everything that might happen to you, said attorney Ed Long, executive director of HELP, a Torrance, Calif.-based nonprofit education service for older adults.

And most people are ill-equipped to imagine even the most common scenarios, let alone how they'll feel in advance about any particular choice. That was one of the conclusions of University of Michigan researchers Angela Fagerlin and Carl Schneider, who reviewed hundreds of studies of living wills, end-of-life decision-making and psychological studies before concluding that living wills don't -- and can't -- work as advertised.

Continued: They don't get used

 1 | 2 | next >