3 all-too-common flaws of living wills

They don't get used

Sometimes family members don't know that a living will exists; at other times, they can't find it. Even if it's in their possession, your loved ones may disagree with your wishes or communicate what they would want in your situation.

The hospital experiences of people with and without the documents indicate that the existence of a living will doesn't seem to change much. One study the Michigan researchers reviewed showed no difference in the number of operations, invasive procedures, diagnostic testing, length of hospital stays or cost of treatment between patients who had living wills and those who didn't.

Often, the documents aren't even consulted because both doctors and family are reluctant to acknowledge death may be imminent, researchers Fagerlin and Schneider said.

"So by the time doctors and family finally conclude the patient is dying," the researchers wrote in their paper, "Enough: The Failure of the Living Will," "the patient's condition is already so dire that treatment looks pointless, quite apart from any living will."

They can't shout down a relative

As Beverly noted, it's naïve to suppose a legal document such as a living will can prevent a court challenge by a determined family member or other interested party.

The dissenter can argue that you've changed your mind since writing the document, or that the situation you face differs from the ones the living will was designed to cover. While the dissenter might not prevail in the end, it won't prevent lots of money being spent on lawyers.

And it may never get as far as a courtroom, anyway. Lawsuit-wary physicians might placate the dissenter, and if the person you named as decision-maker isn't a strong advocate for you or the document, your wishes won't prevail.

3 steps to take now

Does this mean living wills are useless? Absolutely not. If you already have one, it can give your loved ones some indication of what you might have wanted. But you shouldn't assume the living will is all you need.

Everyone who wants some say in end-of-life decisions should do three things:

Draft a durable power of attorney for health care, known in some states as a health-care proxy. This legal document designates who will make decisions for you if you can't make them for yourself. A lawyer can draft this for you, or you can use the forms included in many will-making kits and software packages.."

Choose your decision-maker carefully. Although many people pick a spouse or a child, these may not be the best choices, Long said. "They might not be willing to let you go," he said. "You need an advocate . . . someone who can fight off family who disagree and deal with the medical system."

Also, consider naming one or two alternates if your first choice can't serve.

Explore your feelings about end-of-life care. Long's organization has a pamphlet called "Your Way" that helps people think about the kinds of care they would want in various situations.

He also suggests thinking about what makes your life worth living. "My father-in-law loved sunshine, loved to garden . . . and he loved to eat," said Long. When the man fell ill, family members knew that he wouldn't have consented to a feeding tube and were able to prevent one from being inserted.

Video: Good will hunting

Talk about what you want -- and keep talking. Your family and your decision-maker need to know where you stand on these issues. But you may not be able to settle it all with one conversation, since your views on what is and isn't appropriate care may change over time.

Someone who's a born fighter may be weary of the battle and be willing to "let go" after a long or painful illness.

Conversely, young people in great health may be horrified at the thought of disability. As they grow older, however, they may discover that disabilities can be accommodated and that other things can make life worth living.

And what's appropriate for one person may not be for others.

Beverly, for example, believes her family made the right decision in taking her grandfather off a respirator after pneumonia and heart failure rendered the once "hale and hearty" man helpless. He was conscious off and on, but doctors told the family he'd be on the machine for the rest of his life and the family decided the "in control" patriarch wouldn't have wanted to live that way.

A single mother, Beverly decided she would prefer to remain alive if she were conscious and able to communicate with her young son. She's told her family how she feels.

"Maybe it's the lawyer in me, that if I can talk or communicate, it can't be that bad," Beverly said. "If I'm conscious, I want to be around."

Liz Pulliam Weston is the Web's most-read personal-finance writer. She is the author of several books, most recently "Your Credit Score: Your Money & What's at Stake." Weston's award-winning columns appear every Monday and Thursday, exclusively on MSN Money. She also answers reader questions on the Your Money message board.

Updated Aug. 13, 2009

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