LCMS Convention Workbook St. Louis, Missouri — 2026, Page 199

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THEOLOGICAL DOCUMENTS­­—COMMISSION ON THEOLOGY AND CHURCH RELATIONS
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human care and is not given as treatment for any life-threatening disease. Since this is true, a decision not to offer such care
can enact only one intention: to take the life of the unconscious person.”94

whether the Mary who articulated her preferences two decades ago in a living will would agree with them today in her
particular situation and circumstances.98

We do not know what spiritual communion God may or may not have with a person in a persistent vegetative state.
That some have recovered and resumed relatively normal lives makes it dangerous to presume that we are merely sustaining a biological shell rather than keeping a person alive.95 However, whether we are physicians or nurses attending to a
patient, family members called to bear the infirmity of their loved one, or even the patient himself or herself in a persistent
vegetative state, we are all still God’s creatures, “the instruments by which he provides and preserves life.”96

In order to address the deficiencies of substituted judgment and living wills, many ethicists opt for the designation
of a legal proxy to act in the best interests of the person. Activated in various forms, the Durable Power of Attorney for
Healthcare (under a variety of names) empowers a proxy named by the patient to act in the best interests of the patient.

B. Who Decides?

The annals of medical ethics are full of accounts of debates over who should be the decider. The popularity of living wills, a
topic we will consider in the next section, is in large part a reaction to the fear of physicians imposing their own values and
ideas upon the end-of-life decisions. Some doctors will err on the side of determining that the patient is a “lost cause” and
act accordingly. Others will opt for every treatment conceivable, whether it is prudent or not. Complicating this scene, we
have questions regarding whether physicians may ethically object to performing particular procedures, even against their
consciences and religious beliefs. An influential article in the New England Journal of Medicine argued that physicians freely
chose to enter the field of medicine and that “conscience clauses” should not be permitted.97

The living will was first proposed by attorney Luis Kutner and defended in the Indiana Law Journal in 1969.99 Since
then, much ink has been spilled over the wisdom of such an advance directive. It must be stated at the outset that there is
no perfect and simple answer to the question of whether living wills are beneficial.100 Thoughtful people will continue to
disagree over the wisdom of using them.
The commonly identified arguments for drafting a living will may be summarized as follows:101
1. Living wills preserve self-determination. Given that the patient will be the one either to benefit or be burdened
by future treatments, it stands to reason that he should offer informed consent before being subjected to
medical interventions.
2. Living wills afford an opportunity for a person to declare his or her own wishes for the circumstances of death.
The patient may not want to be kept alive by a machine.

Most people probably agree that patients are not obliged to submit themselves to every recommendation by a physician, even their own. Nor are doctors required to follow bad medicine or unethical practice no matter how strongly
their patients plead for it. We would want patients and their physicians to discuss and deliberate on how to proceed with
a course of treatment. This should include a candid disclosure of the potential risks and the rewards attendant to it. But
what if the patient cannot participate in such a conversation due to the temporary effects of a traumatic injury or a chronic
case of dementia? Case law has tried to answer that hypothetical case with advance directives and “substituted judgment”
criteria. What would the patient have wanted us to do if she were of sound mind and capable of making her wishes known?
But does this approach resolve the dilemma of decision-making?

3. Living wills offer some measure of protection against the twin dangers of over-treatment and under-treatment.
Just as some people are adamant that they want to be resuscitated in the event of a cardiac event, others insist
that they should have a DNR order attached to their files.102

C. Advance Directives

6. Living wills can safeguard family finances. The financial consequences of end-of-life care may be significant,
squandering a family’s resources on interventions that may have little benefit.

4. Living wills can serve to relieve anxiety and to facilitate the process of avoiding procrastinated decision-making
in this critical area of life.
5. Living wills help families by not burdening them with difficult decisions at times of emotional duress. Even if
a family is exemplary in its functioning, watching a parent die is an overwhelming emotional burden, one that
does not lend itself to calm and wise choice-making when the decision may need to be made almost instantly.

Much of contemporary thinking about end-of-life decision-making has accepted a rather simplistic resolution to a difficult
problem. The solution is that the patient alone decides on the care to be received. Given this assumption, a further question
is how a patient is to be treated if he is no longer capable of decision-making. The answer proposed is that individuals
should write down their wishes regarding medical treatment in advance of the time treatment is needed — an “advance
directive.” The most commonly known form of advance directive is the so-called “living will.” In a living will, a hypothetical
patient — let’s say, Mary — expresses the kind of care that she would want as she contemplates life’s end. But this ignores
the fact that patients eventually face an all-too-real end of life that is not hypothetical at all. Indeed, there is a real question
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7. Living wills can reduce litigation risk. Physicians tend to prefer a legal safety net against torts brought by family
members unhappy with the clinical outcome or experiencing guilt and second thoughts about the wisdom of a
course of treatment.

Meilaender, “On Removing Food and Water,” 13.

95
Elsewhere in this document, we argue that one may refuse or withhold treatment from someone in certain circumstances. Sustaining the life of one who is not actively dying is not the same as
removing nutrition and hydration for someone who is in end-stage renal failure and for whom the very continuation of hydration will increase the person’s discomfort and distress.

Robert Kolb and Charles P. Arand, The Genius of Luther’s Theology: A Wittenberg Way of Thinking for the Contemporary Church (Grand Rapids: Baker Academic, 2008), 55. Kolb reminds us
that “both human creatures and nonhuman creatures function as masks of God (Luther used the Latin term larvae Dei), behind which he remains the creative agent of life.”
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Ronit Y. Stahl and Ezekiel J. Emanuel, “Physicians, Not Conscripts — Conscientious Objection in Health Care,” New England Journal of Medicine 376 (2017): 1380–1385. Against this line of
thinking, that when you enter a profession you voluntarily surrender your rights to certain kinds of decisions based on ethical values, Leon Kass makes a strong case for understanding the role
of the physician as a professional one bound by the rule: Doctors must not kill. He mounts a strong case against physician-assisted suicide. He concludes that what dying people most need as the
“treatment of choice is company and care,” “I Will Give No Deadly Drug”: Why Doctors Must Not Kill,” in The Case against Assisted Suicide: For the Right to End-of-Life Care, ed. Kathleen Foley
and Herbert Hendin (Baltimore: Johns Hopkins University Press, 2002), 38.

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The Wisconsin Evangelical Lutheran Synod website offers two brief but helpful discussions of advance directives. See Christian Life Resources, “Living Wills vs. Medical Directive Statements:
There Is a Difference,” https://christianliferesources.com/2012/09/09/living-wills-vs-medical-directive-statements-there-is-a-difference/ and Christian Life Resources, “A Basic Understanding of Medical Directives, https://christianliferesources.com/2018/05/10/a-basic-understanding-of-medical-directives/.
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Luis Kutner, “Due Process of Euthanasia: The Living Will, A Proposal,” Indiana Law Journal 44, no. 4, Article 2 (1969), repository.law.indiana.edu/ilj/vol44/iss4/2.

100

The terms “living will” and “advance directives” are used interchangeably herein.

101

Taking Care: Ethical Caregiving in Our Aging Society. The President’s Council on Bioethics, September 2005, 67–70.

It might be noted that the survival to discharge after in-hospital CPR was 18.7% for patients between 70 and 79 years old, 15.4% for patients between 80 and 89 years old, and 11.6% for
patients of 90 years and older according to a study reported in Age and Aging. Myke S. Gijn, et al., “Chance of Survival and the Functional Outcome after in-Hospital Cardiopulmonary Resuscitation in Older People: A Systematic Review,” OUP Academic, Oxford University Press, April 22, 2014, https://academic.oup.com/ageing/article/43/4/456/2812217.
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While many are persuaded by such arguments for living wills, particularly when taken cumulatively, there are also
sound reasons, both practical and theological, to question the use of living wills.103
1. A minority of people actually utilize living wills. In 1976, California was the first state to legally sanction them,
yet almost 45 years later, a 2020 survey by the Gallup organization revealed that only 45% of Americans have a
living will (and only 46% have a will for their assets).
2. People who do complete living wills typically do so prior to when the living will would take effect. As noted
earlier, what someone may or may not want can change significantly when the time of actual need arises. People
are often confused when asked to sign a living will concerning what their actual end-of-life wishes might be.
One study pointed to a third of preferences for life-sustaining treatment changing over periods as short as
two years.104
3. Living wills are often unclear or even contradictory in the preferences they identify.
4. Living wills are frequently lost, misplaced or not transmitted to those making medical decisions. Despite efforts
by physicians to get patient wishes into their electronic records, medical charts often do not contain the intentions of the patient, let alone the actual document.105
5. Living wills, even when transmitted, often do not correlate with the care decisions made by surrogates at the
bedside of the dying person. While family members generally predict patient preferences more accurately than
physicians, “these studies call into question whether living wills are likely to have a significant impact on the
medical care received by an incompetent patient, at least in cases where surrogate decisions are made either by
relatives of the patient or by physicians who know the patient.”106
Another concern is vital for Christian consideration of living wills. We have warned that the biblical foundation for
human dignity is not personal autonomy, but the reality that God has created each person, that He bestows human value
and worth (or dignity), and that He determines the course of human life from conception to death. For these reasons, we
cannot ignore the danger that some may seek to utilize a living will or another advance directive to project their autonomy
into the territory of an unknown and uncertain future. Of course, there are other reasons why living wills may be appealing. They may serve simply to communicate an individual’s thoughts and desires about medical care and death without any
rejection of God’s sovereignty over life or the gracious character of His wise decisions concerning our lives.
In addition, some who utilize living wills see them as a means for them to express loving concern for their family.
They assume that a living will would minimize the pain and conflict their loved ones might face in trying to address difficult end-of-life decisions. Such a motivation, commendable as it is, requires further consideration. In contrast with those
who wish to avoid burdening their family members, Gilbert Meilaender bluntly says, “I want to burden my loved ones.”107
By this, he addresses the desire to spare family members at the time of death.
Meilaender summarizes the comments he has heard frequently in seminars: “I’m afraid that if my children have to
make decisions about my care, they won’t be able to handle the pressure. They’ll just argue with each other, and they’ll
Taking Care, 71–79. Laws governing the wording and execution of a General Durable Powers of Attorney, an Advance Medical Directive and other similar documents vary from state to state.
It is beyond the purpose of this report to survey the various state laws; rather, readers are encouraged to seek competent legal advice from an attorney familiar with the laws in their state.

103

104

Taking Care, 74.

105

When the Presidential Council on Bioethics report was written in 2005, they reported that only 16% of patient charts contained the actual form. Taking Care, 75–76.

106

Taking Care, 78.

Gilbert Meilaender, “I Want to Burden My Loved Ones,” Things That Count (Wilmington, Del.: Intercollegiate Institute, Inc., 1999). The essay is reproduced in First Things (March 2010),
firstthings.com/article/2010/03/i-want-to-burden-my-loved-ones.

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feel guilty, wondering whether they’re really doing what I would want. I don’t want to be a burden to them, and I will do
whatever I can in advance to see that I’m not.”108
Those who have served in pastoral ministries or in institutions caring for the elderly will recognize the sentiment
Meilaender repeats. Not all families are intact, or cooperative, or even particularly stable. Dying seniors may have one or
more estranged children with whom they have not spoken in years or even decades. Sometimes the relationships between
the children become the crux of the dissension. The end-of-life crisis facing an aging mother or father will only exacerbate
existing sibling issues that have never been resolved satisfactorily. At times, a child may question or mistrust a parent’s
decision-making on behalf of another parent. Would it not be better to prevent such conflict and relieve the burden of decision-making by simply drafting a living will that states what a patient’s wishes for end-of-life care should be?
Meilaender rejects the underlying assumption that a family should be spared such burdens. To be a family is to bear
one another’s burdens. “Is this not in large measure what it means to belong to a family: to burden each other — and to
find, almost miraculously, that others are willing, even happy, to carry such burdens? Families would not have the significance they do for us if they did not, in fact, give us a claim upon each other.”109
The logic of living wills elevates personal autonomy and self-determination above any other ethical values. But if
dying people nearing the end of life demonstrate anything, it is that they are neither autonomous nor self-determining.
Whether attended to by physicians, nurses or willing family caregivers, the wishes and the needs of a person at the threshold of death may be quite different from those that were anticipated perhaps decades earlier while one was still a vigorous
person. As death draws near, such a document is of far less importance than prayerful conversation between family
members, medical caregivers and one’s pastor.
Meilaender reminds us that living wills may cut short such conversations that should rightly occur about a loved
one’s care. He notes that the severely demented or unconscious loved one becomes a stranger of a sort. His very condition
evokes enormously deep and painful emotions. We may experience guilt over things we should or should not have said,
memories of acts we wish we could take back, and fear (even terror) that we might find ourselves in the same situation
someday. Defaulting to the legal language of a living will permits us to turn away from these concerns and shield ourselves
behind the excuse of “just doing what Mom wanted.” More ominously, moved by our discomfort and personal fears for our
own futures, we may be tempted to do less than we should to sustain the life of our loved one.110 Against this, some object
that this burdens the loved ones, exactly what the living will attempts to avoid. But if the language of countless sentimental
greeting cards means anything, love is the kind of burden we freely accept. “For to burden one another is, in large measure,
what it means to belong to a family — and to the new family into which we are brought in baptism.”111
The living will, therefore, may be questioned from the standpoint of Christian theology and common sense for two
reasons. First, the wish to specify all of the conditions of care at life’s end from the perspective of an earlier time may represent an effort to assert an illegitimate “right” to autonomy and self-determination. As already noted, the Christian doctrine
of creation prizes creaturely dependence and receptivity over an individualized quest for autonomy and self-assertion of
rights.
Second, living wills are based on the false assumption that we can predict and fully understand future events. Because
these assumptions are false, living wills have proven remarkably ineffective in accomplishing their intended purposes, as
108

Meilaender, “I Want to Burden My Loved Ones.”

109

Meilaender, “I Want to Burden My Loved Ones.”

110

Meilaender, “I Want to Burden My Loved Ones.”

111

Meilaender, Bioethics: A Primer for Christians, 103.

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2026 Convention Workbook