Increasing numbers of individuals are using living wills to allow others to make medical decisions for them in cases of mental or physical incapacity. Directions regarding the use of extraordinary measures to prolong life, including the use of artificial respiration and ongoing hydration, are frequently addressed in living wills
Appointing a representative to make important decisions on one’s behalf provides the representative with a great deal of power. For this reason, knowing when and if a living will expires is an important consideration in the estate planning process. While a living will expires at death, there are circumstances that can result in the revocation of its power.
In most states, clear communication to a medical professional or other health care provider of one’s intent to revoke a living will is enough to make the document unenforceable. If an individual no longer wishes to have another make their medical decisions for them, and they are mentally and physically capable of making their own decisions, they can effectively revoke a living will at any time.
Living wills that are improperly drafted will also be unenforceable. This can include a failure to comply with state law requirements, such as having the proper number of witness signatures, the inclusion of certain mandatory language, or the proper designation of a representative. A legal change in the status of the relationship between the individual and their designated representative, such as a divorce, can nullify a living will.
Courts may also declare invalid living wills signed under duress or coercion. If an individual has been improperly forced to sign away their rights to make their own medical decisions, the document can be found invalid by a court. As with all legal documents, individuals signing living wills must be of sound mind when they are expressing their desire to have another make decisions for them. Individuals can only properly designate a representative when they possess the mental and legal capacity to do so. For example, individuals who sign living wills while suffering from advanced dementia or Alzheimer’s may be found mentally incompetent, resulting in the invalidity of the living will.
Attempting to invalidate or terminate a living will can be a complicated legal process requiring judicial intervention. Navigating the legal steps necessary to have a court nullify a living will often requires the assistance of an experienced wills and estate lawyer familiar with specific state law requirements. Court appearances and the filing of legal documents may be necessary when an individual can no longer express their own intent to terminate the living will or change the designated representative. With the help of an experienced attorney, individuals can ensure that their preferences for ongoing medical treatment will continue to be protected.
If you have questions about drafting or revoking a living will, the experienced West Chester wills and estates lawyers at Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, P.C. are ready to assist you. With offices conveniently located in Media and West Chester, Pennsylvania, we proudly serve clients throughout Chester County, Delaware County, and Montgomery County. To schedule a free consultation today, call us at 610-565-3700 or submit an online inquiry form.