Legal Ease: Why a living will is necessary

All too often I hear people state that they do not need an advanced directive or living will because their family knows what their wishes are regarding end-of-life care or that they will allow their children to make those decisions for them.  A recent Pennsylvania Superior Court case gives a perfect example of how putting your wishes regarding your health care in an advanced directive or living will can prevent family fights and expensive litigation.

The case, In Re Estate of F.K.[1]  involved a family dispute over what their mother’s wishes were for end-of-life care. In this case, F.K. suffered a fall and brain injury. F.K. had not signed a living will or advance directive. Her daughter filed an emergency petition for guardianship and requested authority from the court to decline life sustaining treatment. The daughter’s brother, the son of F.K., opposed the daughter’s petition. A hearing was then held on the petition to decline life sustaining treatment. Medical testimony was presented as to the mom’s unresponsive state.

The daughter testified that she believed her mom would not want to live in the state she was in as she was a very independent woman, active, loved being outside, dignity was important to her and she took pride in her appearance. The treating physicians of F.K. testified as to the severe brain injury she sustained, her deep coma, and dependency on a ventilator and feeding tube. The treating physician opined that mom’s chance of recovery was almost zero.

The son disagreed with his sister and testified that he believed mom just needed time to recover, and that she was in a stable condition. He testified as to mom being a devout Roman Catholic and that in the course of talking to his mother about health issues in the family, she indicated that she would want to be kept alive and taken care of.

The court heard additional testimony from a physician secured by the court appointed counsel. This physician also concluded that mom was in a comatose state and had a dire prognosis for any meaningful recovery. Ultimately, the orphans’ court entered a decree granting the petition to decline life sustaining treatment, the court gave great weight to the medical testimony. The son filed an appeal, but the Superior Court upheld the decision of the trial court.

Had F.K. signed a Durable Health Care Power of Attorney and Living Will, this could have prevented the legal battle between the children regarding mom’s wishes.  A Durable Health Care Power of Attorney is a document that allows you to appoint a health care agent to make decisions on your behalf if you are unable to do so for yourself. A Living Will outlines what your wishes are regarding end-of-life care. In the document you would state your wishes about future medical decisions, life support systems, and artificial nutrition and hydration. This document ensures that your wishes are known and followed. If you become terminally ill or are in a permanent state of unconsciousness due to an accident, a Living Will can save your family and friends from having to make hard decisions regarding your care.

The legal advice in this column is general in nature, consult your attorney for advice to fit your particular situation.

Rebecca A. Hobbs, Esquire is licensed to practice in the Commonwealth of Pennsylvania and is certified as an Elder Law Attorney by the National Elder Law Foundation as authorized by the Pennsylvania Supreme Court. She is a principal of the law firm of O’Donnell, Weiss & Mattei, P.C., 41 High Street, Pottstown, and 347 Bridge Street, Phoenixville,610-323-2800, www. owmlaw.com. You can reach Ms. Hobbs at rhobbs@owmlaw.com