My Annotated Living Will

Both courts and legislatures have gone a long way toward recognizing individual autonomy to shape the extent of medical intervention in the face of a naturally occurring dying process. This autonomy extends beyond the patient's period of capacity to make decisions on his or her own behalf. That is, a person, while still competent, can express treatment preferences, and those preferences will generally be honored after competence to make medical determinations has been lost. This is the message flowing from judicial emphasis on “substituted judgment” as an important guide in the medical handling of incompetent patients, and from the multitude of “natural death” or “living will” statutes adopted over the last 12 years. These statutes prescribe a format for a person to issue instructions about medical treatment or non-treatment to be followed if the person becomes incompetent. Such prior instructions designed to guide future medical decisions can be somewhat problematical. If the instructions are not issued proximately to the moment of their utilization, there may be concern that the issuer's preferences have changed over time.