July 12, 2007

Ask The Lawyer

So-called ‘living wills’ not generally used in California

This week's question:
I read your column quite regularly, but I have yet to see you write about living wills. I saw on TV last week that they can be quite effective, inexpensive and easy to use to express one's desires about end-of-life measures. I would like to know what you think about living wills.

Anne A.
Almaden Valley


Dear Anne:
The short answer, Anne, is that I do not think much of so-called "living wills." Perhaps in other states they are used more frequently, but I do not believe they are very useful for us Californians. We do not use them in our office.

The reason why living wills are not used very much in California is because we have other documents that I believe are much more effective, authoritative and useful. And better for you, the consumer.

You may have read this column a few weeks ago when I wrote about a "Request to forgo resuscitative measures" that can be quite useful in providing for a person's wishes to forgo resuscitative measures. Sometimes this is referred to as a "DNR" request, often identified by a bracelet the person wears. The DNR request is a legal document that is authorized by Probate Code §4780. A so-called "living will" may try to go further than this type of document.

And in prior columns in this space, I have written about the benefits of an Advance Health Care Directive.
In a living will, a person may state his or wish to die a natural death, free of intervention by anyone who would keep him or her alive with the help of machines or other artificial means.

A living will may contain a detailed list of things to do and to not do in certain situations. Sometimes older adults and seriously ill individuals may sign a living will paper in the hope that others will follow their wishes if they cannot speak themselves about their health care.

In California, we residents can much better sign an Advance Health Care Directive, or "Advance Directive" for short. In this document, an agent is named to work with your doctor when the person cannot act by himself or herself. Your wishes for end-of-life decisions are stated clearly. For example, you may not want heroic measures taken to keep you alive when there is absolutely no hope for survival.

In the living will, there is no agent to enforce its provisions and to work with your own doctor in dealing with a multitude of factual situations that may arise.

One of the estate planning authoritative sources that I use in my law practice states that:

"The estate planner may encounter numerous forms of living wills prepared by various agencies throughout the country and should be extremely cautious in advising a client to use such forms."

So, Anne, it seems to me that you want to stay with better California documents that may help in that situation, such as the "Advance Directive" and possibly the "Request to Forgo Resuscitative Measures" provided in the California Probate Code. Your local senior center and your own attorney can probably help you with these documents. I would stay away from the living will.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.