A living will is a legal document that outlines medical treatment preferences when you cannot communicate your wishes due to illness or injury. It helps prevent family disputes, ensures your healthcare choices are honored, and must comply with state laws for validity.
By Brad Nakase, Attorney
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In the event that you become unable to communicate your healthcare decisions, a living will can serve as a legal document outlining your wishes. Even though it’s a component of your estate plan, it differs from a last will and testament, which specifies the distribution of your assets.
Many people put off creating a living will until they are very ill or very elderly. However, anybody, regardless of age or health status, is vulnerable to sudden illness or injury. What follows is a more in-depth explanation of living wills, including their purpose, format, and suggested contents.
An advance directive known as a living will specifies the medical treatment that the patient wants in the case that the patient is unable to communicate these wishes verbally. It takes your wishes regarding your healthcare and makes them known in the event that you are unable to do so due to illness or injury. In addition to reducing the likelihood of misunderstandings or disputes regarding your best interests, having one can protect your loved ones from having to make tough decisions regarding your care.
Living wills are legally binding documents that must adhere to state laws and typically necessitate the presence of witnesses or a notary public’s signature. However, you are free to revise or withdraw this document at any moment to reflect your current desires regarding your health care, as its purpose is to give you agency over such matters.
There are sample health care directives and free forms available in most states. These can serve as a foundation for further discussion with your healthcare providers and an expert attorney. The following is a broad outline of how to draft a living will. Should you find yourself spending a significant amount of time in other states, it is advisable to ensure that your living will is also enforceable in those states.
Talk to your primary care physician or other frequent healthcare provider about your long-term healthcare needs. To help you make an educated decision about the care you want to receive, doctors can explain procedures and treatment options.
Medical care is a personal decision, whether it’s for a serious illness or end-of-life care. You should think about how long you can endure particular treatment regimens because they can be taxing on the body. Make sure your living will specifies your comfort preferences if you have any. If you have a preference, please state where you would like to receive treatment. For instance, if you were in need of medical attention, would you rather have it done in a hospital or nursing home, or at your home?
If you have a living will, your loved ones won’t have to worry about making tough decisions on your behalf. Make sure they know your healthcare and end-of-life preferences by talking to them.
Lots of thought and planning goes into writing a living will. As a legal document, a living will must comply with all applicable state regulations. Signing in the presence of a notary or witnesses who attest to your mental capacity and absence of coercion is a common practice in this regard.
Keep in mind that you can always make changes to your living will by drafting a new document; however, in order to avoid any potential disputes or misunderstandings, you should destroy all previous versions.
To make sure the living will follows all the rules in your state and is written in a straightforward and instructive manner that doesn’t leave much room for interpretation about your desires, it’s a good idea to consult with an experienced lawyer.
Although it’s understandable to want to keep your living will under wraps, keep in mind that many individuals will require access to it in order to make advance arrangements for their care. Your healthcare preferences might go unheeded if they are unable to locate it. Think about making sure certain people have a copy of your living will and keeping the original at home:
Any surgery, no matter how small, and particularly any that requires anesthesia will require you to present a copy of your living will to the staff at the hospital or surgery center. To make sure that the people who need to know about your healthcare choices can find them, it’s smart to have several copies of your living will.
The sole purpose of a living will is to direct medical or end-of-life care, and it should account for every possible consequence of such care. Before finalizing your living will, consult a lawyer and a doctor to go over the most common types of scenarios, outcomes, and treatment options. Use the following scenarios as a starting point:
Instructions to not intubate or resuscitate
It is not necessary to have a living will or advance directive in order to have a DNR or DNI order. Inform your doctor of your wishes in order to set DNR or DNI orders. The doctor or nurse will document the orders in your medical file.
Setting DNR or DNI orders at each new hospital or health care facility is a good idea, even if you already have a living will that specifies your resuscitation and intubation preferences.
Every adult should think about creating a living will because it can give your loved ones some security in the event of your untimely demise.
If you take the time to write out your wishes for your loved ones to follow when you’re healthy, your loved ones won’t have to make tough decisions in your absence. A living will takes on added significance when one is seriously or terminally sick, about to undergo surgery, or both.
Your doctors will ask your closest relatives (usually your spouse, then your children, though the exact sequence varies by state) to make decisions about your care in the event that you become incapacitated or unable to do so yourself and no living will is in place.
In many states, a living will is a legal document that must be in place before a representative can legally make decisions on your behalf regarding your health care. The process of turning off life support can be lengthy, costly, and emotionally taxing if a living will is not in place. Additionally, doctors may have the authority to choose which family member’s opinion to uphold.
A living will may be disregarded in the following cases:
A living will may not be valid in your state due to various reasons. Your living will may not be enforced if there are insufficient witnesses, undeleted prior wills, doubts about your mental capacity, or a court determines that your will was impacted by fraud.
Living wills are legal documents that take effect while you are still alive and outline your desires for your medical treatment when you are close to the end of your life, while last wills and testaments are legal documents that take effect after you pass away and outline how you would like your estate distributed.
Despite the frequent interchangeability of the terms, a living will and an advance directive are not the same thing; a living will is an integral component of an advance directive. In addition to a living will, a health care directive (also known as an advance directive) may contain a health care power of attorney. If you need help deciding what to include in your advance directives, a lawyer is a good resource.
In the case of a terminal illness, a living will expresses your precise desires regarding the administration of life-sustaining medical treatments, including the option to forego or receive them. Creating a living will allows you to plan ahead for the possibility of an incurable or irreversible illness and to spell out your desires regarding medical care and treatment in the case that you are unable to communicate them verbally.
If you want someone else to make decisions about your medical treatment instead of you, you can designate them as your health care proxy or health care power of attorney. This representative will act in your best interest and make decisions about your medical treatment. In certain states, a health care power of attorney is a separate document from a living will, while in others, it is an integral part of a living will.
When it comes to designating a healthcare agent, state laws differ. As a general rule, your primary care physician cannot also serve as your health care agent. You can find out who can be your healthcare agent by checking the laws of your state.
It is wise to think about your preferences regarding various medical treatments before making your own living will. To find out who among your loved ones is capable of acting as your healthcare proxy, it might be helpful to consult with them. Before you write a living will, consider the following:
While this is by no means an exhaustive list, it should serve as a jumping-off point for discussions regarding living wills with your physician or attorney.
Considering your wishes for medical treatment in the event of a possible end-of-life scenario is not a simple undertaking. Though it may be a daunting task, writing a living will can alleviate your loved ones’ and your own anxiety and worry about the future.
1. What is good about having a living will?
A living will offers numerous advantages. With your last wishes laid out in writing, you can rest easy knowing that your loved ones won’t have to make the difficult decisions about your care that could cause arguments or other unwelcome consequences. A living will can also help make sure that your doctors understand and honor any religious preferences you may have.
2. What is the biggest disadvantage of a living will?
There may be gaps in a living will, because no one can know or anticipate every possible outcome. The scope of these legal documents should be wide, but they should also include as much detail as possible to avoid omissions.
3. At what age can one make a living will?
Being of legal age and mental capacity is required. Until they reach the age of 18, parents or legal guardians of minor children are able to make decisions regarding their health care on their behalf.
4. Do living trusts and living wills mean the same thing?
No, a living will is about making decisions about your health care if you get sick or near the end of your life. With a living trust, you can avoid the probate process and leave your assets to the people you choose.
5. Is a notary’s signature required on a living will?
It depends on the law in your state. Notarization or witness signatures are required in some states. It is not possible for you or your healthcare providers to serve as witnesses.
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