#119: A Living Will

September 18, 2014

Not too long ago my wife and I responded to the urging of our lawyer by writing a “living will,” a document with legal force which instructs people as to our terminating wishes when we are no longer capable of making such decisions for ourselves. This seemed a prudent thing to do at the time and, even now, it doesn’t seem harmful. However, on reflection, it does seem less obviously useful. Here’s what I now think.

Should I be the one near the end of his life, I will either be mentally fit or not. If I am mentally fit, I really don’t need a living will — I’ll make my decisions at that time. If I am not mentally fit, however, a living will I write NOW does not seem obviously better than anyone else’s decision at any time. The reason is this.

However much more I might be thought to have my own interests in mind right now, it doesn’t follow that what I want right now is the same as what I would want at some later date when my circumstances would be substantially different. And the longer I live, the more significant this problem becomes. If I legislate right now for my future self, this seems to me the same as my legislating right now for a totally different person altogether, now or in the future. As long as I retain my mental powers, I am protected from my living will since my future decisions will always trump my living will. But if I have lost my mental powers, then things get murky and my living will becomes my master.

Once I have lost my mental powers, it can’t really be said that my living will represents my real desires, since I probably don’t have such anymore; or, to put it another way, even if I still have “real desires,” those desires have been marked as legally irrelevant since I have become legally incompetent. Consequently, it can be asked precisely why my living will should be given a privileged status at the end of my life. Why, for example, should I assume, when writing my living will, that my own judgment right now will be a better one than that of, say, my wife or my sons or, for that matter, a physician who may be present at the time.

I know what I want for myself right now and I want that my current wishes supersede those of all others in those respects dealing with my health, but I don’t know that I want that to be the case when I have become incompetent.

This means that a living will has no utility as long as I am competent and is of very questionable utility when I have ceased to be, as long as at least one trusted alternate is still on the scene. It’s only value seems to be as protection against utter strangers of unknown motivations getting decision making power simply by default. This has some value, I admit. Yet it does seem to me still that trusted alternates should be able to override the living will.

I know that some people will insist that their living will should be the final arbiter of their final circumstances. They seem to trust their current inclinations much more than the future inclinations of their trusted alternates. Why would this be the case? I can only speculate, but I think it may be that they don’t fully appreciate just how different they and their circumstances may well be at the end. They may fantasize that there will be some sense in which their current self will still somehow be there, lurking behind the mindless suffering visible to others. And that self, they think, will want the same things as their current self wants; it will be our doppelganger advocate when we can no longer represent ourselves. But living wills are like photographs, they remain the same even as we change. Who will better represent us, a living will frozen in time or a living person who has known and cared about us?

I don’t want to make it seem like this is an easy matter. In the end, we are looking for sensible, merciful decisions for a living being who no longer has legally relevant preferences, whose inclinations simply don’t count any more. But even more important than sensible and merciful, our culture still holds that we owe a certain respect to those who have left the ranks of the competent, whether from deterioration or even from death. We believe that our wishes should in many cases be made to carry over beyond our competence. How to accomplish this, this is the conundrum.

But decisions can only come from actual persons, from legally competent alternates, and so we are looking for an alternate whose preferences we can substitute for a person who is no longer here. And this is no easy matter.

The best we can do is to find a trusted alternate who shares our values and our attitudes. Is this a guarantee? Hardly, but then, neither is a living will.