Importance of a Living Will
Many of our clients have expressed interest in executing a Natural Death Act Declaration, sometimes called a “living will.” This provision was adopted by the General Assembly a number of years ago, largely through the efforts of Alexandria’s former Delegate Bernie Cohen, in response to several nationally publicized “right to die” cases. Those choosing this option can effectively prevent the “artificial” prolongation of their lives, if all hope of recovery has been lost, via the administration of heroic technological means. One difficult question under the Act has been whether it covers those in a “persistent vegetative state,” an irreversible condition where almost all of the attributes which we associate with human life are absent, but which can be prolonged for years, just by the medical administration of food and water. The thorniest issues have been whether or not the furnishing of food and water is an “artificial” life-prolonging medical procedure, and whether the death of such a patient is “imminent” as required by the language of the Act.
Virginia lawmakers have acted to clarify and expand these limits of coverage under the Virginia Natural Death Act. Hydration and nutrition are now specifically included among the life-prolonging procedures which a declaration can forbid. The requirement in the former law that death must be “imminent” before a declaration is given effect, has also been eliminated. Greater flexibility in specifying which procedures are desired and which are to be avoided is also provided. It appears that all Virginians now are assured the right to choose to avoid being sustained indefinitely in such a “persistent vegetative state.” Making such a living will empowers each of us to make such a sensitive decision for ourselves, and thereby to spare loved ones, lawyers, doctors, and judges the difficult, awkward, and heart-rending task of trying to make such a choice for us, after it is to late for us to do so ourselves.
The 1991 amendment to the Act (in an effort to accommodate those who have already executed such a living will under the old version of the Act) provides that its provisions apply to even those declarations executed before the law was changed. Those prior declarations, however, in almost all instances, contain the restrictive language of the old statute: “if … I should have a terminal condition … and my death is imminent … .” Will the highlighted phrase, above the patient’s signature, still be given effect? Or will it be presumed that the declarant would have omitted this express limitation if the statute had so allowed at the time? We cannot predict with any confidence how such issues will be resolved.
Family First Law Group strongly recommends that anyone who has deep personal convictions on these matters should make arrangements to prepare and execute one’s own living will. In addition, those who have previously executed a Natural Death Act Declaration should review it carefully: if it contains the “death is imminent” language from the old statute and if you feel strongly about avoiding the “persistent vegetative state” dilemma, we advise you to eliminate uncertainty by executing a new, unambiguous declaration of your wishes in this regard.