What Is a Living Will?

The information below is from the Oregon State Bar's Tel-law service, a collection of recorded legal information messages prepared by the lawyers of Oregon. In addition to being online, the Tel-law service is accessible by telephone at 503-620-3000 or toll-free in Oregon only, 1-800-452-4776. A touch tone phone allows direct access 24 hours a day, 7 days a week. To receive a free Tel-law brochure listing the subjects available call 503-620-0222, ext. 0.

The following information regarding living wills is brought to you as a public service by the lawyers of the State of Oregon. The material presented is general legal information intended to alert you to possible legal problems and solutions.

What is a 'living will?'
Many people recognize that death is as much a part of the life cycle as birth, growth, maturity, and old age. Managing their final illness is something they can do through a living will, a legal document of health care instructions. This document also may appoint a health care representative to make health care decisions for you when you are unable to make your own health care decisions. In Oregon, this document is known as an Advance Directive. The Advance Directive must be signed by you and witnessed by two qualified witnesses. The Advance Directive may include a directive to physicians to withhold or withdraw life-sustaining procedures under certain circumstances.

What are these 'certain circumstances?'
Two physicians, one of whom must be your attending physician, must confirm that you are either: close to death and life support would only postpone, not prevent death; you are permanently unconscious; you have an advanced progressive illness; or life support would not help your medical condition and subject you to extraordinary suffering.

Who can witness an Advance Directive?
One witness must not be related by blood, marriage, or adoption or plan to inherit any part of your will or have any claim against your estate. That witness cannot be an owner, operator, or employee of a health care facility where you are a patient or resident. The attorney-in-fact for health care, alternate attorney-in-fact, and your attending physician cannot be a witness.

How long is an Advance Directive valid?
An Advance Directive is effective from the date it is executed until you die or until the directive is revoked. If more than one advance directive has been executed, the last one to be executed will control.

How can it be revoked?
You can revoke it at any time, regardless of your mental state or competency. If you revoke it, you can start it again or make a new one only by doing so in writing. You must be mentally competent to restart or make a directive.

Who can make an Advance Directive?
Any capable person, over the age of eighteen, may make an Advance Directive at any time.

Can I draft my own Advance Directive?
Oregon law states that an Advance Directive must be in a certain form. If you want your Advance Directive to be valid, you must use the correct form. All health care organizations, including home health agencies, hospice programs, hospital, long term care facilities, and health maintenance organizations have the forms and will provide them to you. The form is in the Oregon Revised Statutes, and all hospitals have the form. A lawyer can prepare the form for you also.

Isn't an Advance Directive the same as mercy killing?
No. Nothing in the statute condones, authorizes or approves mercy killing or permits a deliberate act to end life. Instead, it permits the natural process of dying as provided by the laws dealing with Advance Directives. You express your choices; your health care representative may only follow your wishes when you are incapable. Someone who actively ends your life may be guilty of a crime.

Won't physicians be afraid to get involved with Advance Directives?
Designated health care representatives, health care providers, and health care facilities, who act in good faith and in accordance with the law are immune from criminal and civil liability.

Can insurance companies require policy holders to sign Advance Directives in order to get or retain medical insurance?
No. The Advance Directive does not affect the terms of any life or health insurance policies.

Is an Advance Directive necessary in all cases?
No. If an incapable person with no Advance Directive or health care representative has been medically confirmed as meeting the certain conditions (described earlier), the attending physician can withdraw life support at the request of the following people, if they are willing to serve as the health care representative: the person's guardian authorized to make health care decisions; the person's spouse; a majority of the person's adult children; either parent of the person; a majority of the person's adult siblings; or any of the person's adult relatives or adult friends. If none of these people are available, life-support may be withdrawn by the attending physician. The health care representative may only make the decision to withdraw life-support after consulting with family and close friends.

Many people recognize that death is as much part of the life cycle as birth, growth, maturity, and old age. People having such beliefs may be interested to know that an Advance Directive is available to them by Oregon law. If you wish to have an Advance Directive, contact your lawyer or physician.

Although Tel-Law information is periodically reviewed, it is important for you to realize that changes may occur in this area of law.

This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.