The requirements for living wills vary by state. Typically, you must be at least 18 years of age and of sound mind to make a living will or health care directive. Most states also require living wills and health care directives to be signed in the presence of at least two witnesses, notarized by a notary or some combination thereof. If you are using your state’s statutory living will form or advance directive form, carefully review the instructions on the form before signing it. Review the legal requirements in your state to ensure you execute your health care directives or living will properly, otherwise they will not be enforceable. For a list of guides on how to make a living will, go to living will books.
A Living Will is Not a Power of Attorney
When making a living will, you are not required to appoint an agent for health care. If you do not have a person you feel comfortable authorizing to make medical decisions for you in the event of disability, you can still make a living will. However, no matter how comprehensive your health care directives are, many situations can arise which require another person to make decisions about treatment on your behalf.
We continue to see advances in health care and medical technology. As a result, it is impossible to foresee all the questions that may arise regarding your health care in the future. It is recommended you appoint an agent to make health care decisions for you in the event you are unable to communicate or make these decisions yourself. See health care POA.
In many states, a living will expresses your wishes regarding end of life care but does not appoint a health care agent. In other states, the statutory living will form allows you to appoint an agent within the same document. To find out whether you can appoint a health care proxy within your living will or need to execute a separate durable power of attorney for health care form, review the advance directive forms in your state. Most
estate planning software programs include living will and health care directive forms. Consult an estate planning lawyer if you have questions about the requirements for living wills in your state.
Currently, there are a few states that do not enforce living wills. In these states, it is even more important to make a durable power of attorney for health care to appoint a health care agent. For information about the laws on living wills and making a health care power of attorney in your state, see medical decision laws.
When Does a Living Will Become Effective?
A living will becomes effective when you are in a permanent vegetative state, a permanent state of unconsciousness, or have a
terminal illness and cannot express your wishes regarding life sustaining medical care. A living will does not prevent you making health care decisions while you are still able to communicate with your health care providers.
Why Make a Living Will?
A living will is sometimes called a health care directive, medical directive or advance directives. State laws generally require all available medical means be used to keep a person alive. If you do not want life sustaining measures to be used to keep you alive if you have no reasonable expectation of recovery, you can make a living will or health care directives to communicate your end of life preferences to your physicians.The primary purpose of a living will is to outline the medical situations in which the maker does not want to be kept alive on life support, if it should be necessary at some future date. Because a living will is made in advance of its use, it is often called an advance directive. A living will allows you to outline the types of care you want to receive or have withdrawn if you have a terminal illness or irreversible condition in which life sustaining care would only postpone your death. A living will makes your wishes known on such measures as feeding tubes, respirators, defibrillators, cardiac resuscitation, hydration, and nutrition if you should become incapacitated, go into a coma or cannot communicate in the future.The Terri Schiavo case is an example of what can happen when you do not make a living will. The family of Terri Schiavo was embroiled in a seven year legal battle over whether she should be taken off life support after she was diagnosed as being in a persistent vegetative state. During the lengthy and contentious legal dispute, both sides argued about her preferences regarding life support.A living will is fairly easy to make and can prevent disagreements among family members about your intentions concerning life support. It can save your estate the legal fees and court costs that result when there is a dispute about end of life care. If you do not want your family burdened with expensive medical bills, a living will is an effective way to protect your family.
After Your Living Will is Executed
If you are being admitted to a hospital for any reason, even a minor procedure, give your health care directives to your attending physician or hospital admissions staff. You should also give your health care directives to your agent under a health care POA. Discuss your advance directives with your partner, children, parents or close friends if you want them to be involved in making decisions regarding any treatment you will receive.
Some lawyers recommend signing several originals of a living will or health care directives so you can give an original to your physician or hospital, your health care agent, and retain an original for your records. Consult your estate planning attorney regarding whether a photocopy will be accepted by hospitals and doctors in your state or whether an original is required. See finding an attorney.You can also make your living will, health care power of attorney, and DNR Orders available electronically. There are companies that will store a digital copy of your advance health care directives online for a fee. Ask your estate planning lawyer about options to store your living will online. If your attorney participates in a document storage program for estate planning documents, this type of electronic storage may be available to you through your lawyer. By making a digital copy of your medical directives available online, there is a greater likelihood your instructions for end of life care will be followed in the event of an emergency or unforeseen illness.
If You Move to Another State
Every state has its own unique laws regarding living wills and health care directives. These laws can vary dramatically. A living will made in one state may not be enforceable in another. Requirements for witnesses and notarization of living wills also vary from state to state. See
When you move to a new state, consult an attorney licensed in that state regarding whether you need to execute a new living will or health care directives. You should also review the requirements for living wills in that state.
If You Revoke or Change Your Living Will
If you revoke or change your living will or health care directives, be sure to notify all hospitals, physicians, health care providers, your agent for health care, and other individuals that may have a copy. Give them your revised living will or health care directives and ask them to destroy all other versions.This article was updated on August 31, 2017.
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