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Legal and Ethical Issues Surrounding End of Life Decisions

Living wills are legal in all states, but requirements for creation and use vary from state to state. The commonly used names for living wills are:

  • Advance Health Care Directive
  • Medical Power of Attorney, or Durable Power of Attorney for Health Care
  • Health Care Proxy or Surrogate Decision-Maker

A living will is a work in progress. Circumstances of life change, as do priorities and values. A living will document signed in one state may not be recognized upon relocation to another. Directives can be changed at any time provided the maker remains competent.

Legal Issue of Competency

Living wills must be created when an individual has the mental capacity to make important and reasonable decisions, and communicate those wishes effectively.

In most states, the competency requirements include:

  • Maker is 18 years or older
  • Maker can understand what the document means, contains, and how it works
  • Maker can sign the document in the presence of a witness and / or notary public

All competent adults have the right to make a living will because of a federal law known as the Patient Self Determination Act.

Patient Self Determination Act (PSDA)

Under this law, all hospitals and nursing homes that provide Medicare or Medicaid services must educate patients about healthcare directives. This act specifically requires health care providers to:

  • Provide written information about the right to advance health care directives
  • Document the presence of a healthcare directive in the individual’s medical records
  • Provide education to staff and community
  • Not discriminate against any patients based on the contents of a healthcare directive

End-of-life circumstances are unpredictable. A living will cannot cover every possible situation. Often, social and spiritual values conflict, causing ethical dilemmas. The most common ethical debate in health care is withdrawal of nutrition and hydration.

Nutrition and Hydration – Supreme Court Ruling

In 1990, the United States Supreme Court ruled that artificial nutrition should be treated the same as other life-sustaining treatments. The American Medical Association agreed. In response, courts throughout the United States have consistently ruled:

  • Competent adults may refuse to receive artificial nutrition through feeding tubes even though this may hasten death
  • Family members or a medical proxy may decide to withdraw artificial nutrition or hydration
  • Family members or a medical proxy may refuse to have treatments started on an incompetent adult

Ethical Principle

When a body is not healthy, food and water are not processed normally. Tolerating feeding may become a burden to the patient’s system. Therefore, courts and doctors apply the same ethical principle to nutrition and hydration as other life-sustaining medical treatments. If a patient receiving life sustaining treatment suffers a burden that outweighs any benefit offered by extending their life, then treatment should be either stopped, or never initiated, even if the patient will die as a result of this action or inaction.


Medical professionals have a duty to honor your living will. If they disagree with your directive, they have a duty to transfer you to a physician who will. When living wills are not followed, health care providers may be legally responsible for any harm. A lawyer who is competent and experienced in advance directive defense can facilitate this important process in a timely and effective manner. If you need help creating a living will for yourself or a loved one, call an attorney today.

DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Learn More:

Living Wills – An Overview
Legal and Ethical Issues Surrounding End of Life Decisions
Purpose of a Living Will / Advance Care Directives
History of Living Wills
Living Wills Resource Links

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