Living Wills

A living will is a legal planning document that states your wishes regarding end-of-life medical treatment. To establish a living trust,  a trust document needs to be signed and notarized.

Why You Need a Living Will

What a Living Will Does:

A living will outlines the type of medical treatment you wish to receive (or not to receive) if you become terminally ill and are no longer able to make your own decisions or are permanently in a vegetative (unconscious) state. The living will helps your family and health care professionals determine whether you want death-delaying procedures in these situations. A terminal condition usually means an incurable and irreversible condition where death is imminent and the use or application of any death-delaying procedures serves only to prolong the dying process.

A living will does not:

  • Appoint a representative to carry out your wishes. Apply to conditions that are not terminal or vegetative.
  • Appoint a representative to manage your property or finances.

Who Can Make a Living Will

Any competent adult can make a living will. Different states may have slightly different standards, but in general, an adult is anyone aged 18 or older. Competent means that the person executing a living will understands the document he or she is signing and is able to communicate his or her wishes.

Will My Doctor Honor My Living Will?
Your doctor does not have to honor your living will if he or she has religious, moral, or ethical objections or believes it would not be consistent with sound medical practice. However if your doctor does have such objections, he or she is ethically obligated to transfer your care to other providers who are able to follow your wishes.

if your doctor does have such objections, he or she is ethically obligated to transfer your care to other providers who are able to follow your wishes.

Here are three steps you can take to ensure that your doctor will follow your wishes as stated in your living will:
First, give your doctor a copy of your living will, discuss your decisions with the doctor, and get assurances that he or she will abide by them.

Second, execute a health care durable power of attorney (discussed in II. below) that names an agent to make healthcare decisions for you when you no longer have the capacity to make deci-sions for yourself. Give your agent a copy of both your living will and health care durable power of attorney and make sure he or she is prepared to see that they are followed.

Third, share these documents with close family members and make sure they are aware of your wishes.

  • Benefits of a Living Will
    A living offers these potential benefits:
    It helps to ensure your wishes are followed regarding medical care at the end of your life. It relieves your loved ones of the burden of making end-of-life decisions without knowing your wishes.
  • It enables your doctor to follow your instructions. Without a living will, a doctor may be con-cerned that it may constitute medical malpractice or even a crime if he or she withholds or removes treatment.
  • It keeps your private wishes on dying out of the probate court. Without a living will, your family and medical care providers may disagree as to what care should be provided or withheld. If they don’t all agree, the matter may end up in court.

Treatment Choices in Your Living Will
A living will allows you to request your health care providers to administer life-prolonging treat-ment, withhold such treatment, or stop such treatment after a specified period of time when you are near death or in a permanently unconscious state.

Most states have a form that you can use to prepare a living will. In some states, you are not required to use the state form but can use a custom-drafted one.

Living will forms vary from state to state but all cover similar topics related to end-of-life care and death. Some spell out particular treatments that you can choose or decline, while others simply allow you to choose between requesting life-prolonging treatment or refusing life-prolonging treatment.

Common items to consider when preparing a living will are whether:

  • You want medical personnel to attempt to resuscitate you should you experience cardiac arrest.
  • You want to be placed on a ventilator to help you breathe.
  • You want to be hydrated and fed through IVs and a feeding tube if you can’t eat or drink. You want dialysis if your kidneys fail.
  • You want to be given medication to treat infections.
  • You want to undergo surgery if necessary to prolong your life.
  • You want only palliative care to keep you comfortable and pain-free.

Discussing these decisions with your doctor before making your living will is a good idea. Your doctor can explain the risks, benefits, and consequences of these treatments so you can make a more informed decision. Your doctor can also tell you if he or she has reservations about following your instructions which will allow you the opportunity to find another doctor.

A living will may also indicate your:

  • Desire to become an organ or tissue donor.
  • Religious preferences.
  • Burial and final disposition wishes (e.g. cremation).


Executing and Distributing Your Living Will

Execution Requirements for a Living Will
You must be mentally competent (i.e. able to understand the document) when you sign your living will. If you are competent but have impaired function (e.g. cannot write), someone may be able to complete the document for you, but no one can make a living will for another person. The choices must be your own. Once you have completed the living will, you will have to follow your state’s requirements for exe-cution. Most states require that you sign the document before one or two witnesses or a notary.

Certain persons may be disqualified as witnesses, such as your doctors, nurses, beneficiaries of your estate, and relatives.

What to Do With Your Living Will
Once you have properly executed your living will according to your state’s requirements, you should keep the original document in a safe, but accessible place. Tell someone you trust where it is. You also should provide copies to your regular health care providers and to the hospital or care facility when you are admitted. Your health care providers can follow your wishes only if they know them.

If you have a health care durable power of attorney (discussed in II. below), you should give a copy of your living will to your agent. Consider also giving copies to family members so they understand your wishes and do not inadvertently interfere with them.

If You Move to Another State
Each state has its own laws, forms, and procedures, so it is best to consult an attorney or prepare a new living will if you move from one state to another. Not all states will recognize a living will from another state. The U.S. Supreme Court has ruled that each state has the authority to decide what evidence is “good enough” to determine someone’s wishes about end-of-life decisions.

When a Living Will Takes Effect
Although state laws may vary, generally, a living will takes effect only if at least one doctor finds you incompetent and certifies that you are terminally ill or in a persistent vegetative state. Incom-petent means you cannot understand the consequences of treatment decisions including risks, benefits, and alternatives.

If you are temporarily incapacitated, your living will does not take effect. For example, if your medical condition does not allow you to speak but you are likely to recover, your doctors cannot invoke your living will.

In situations of temporary incapacity, an agent under a health care durable power of attorney (covered in II. below) may be able to make decisions for you.

Changing or Revoking Your Living Will
You have every right to change or revoke your living will if you change your mind about the contents. As long as you remain mentally competent, you can change or revoke your living will at any time.

It’s a good idea to review your living will from time to time to make sure it still expresses your wishes. Good times to do so are before you enter the hospital for treatment, when you are diagnosed with a serious illness, and when your marital status changes.

State laws typically provide that you can revoke a living will by destroying the original, executing a written document revoking the living will, or executing a new living will that is inconsistent with the old one.

The best way to revoke your old living will is by destroying it (e.g. tearing it, striking it with lines, or shredding). Then you can execute a new living will and redistribute it. Be sure to give a copy to everyone to whom you gave a copy of your former living will—your doctors, hospital or care facility, health care agent, and family. Just to make sure there is no confusion about which version of a living will is in effect, your new living will should be dated and state that it revokes all prior living wills.