You must be at least 18 years of age and of sound mind to make a living will or health care directive. Most states 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 links to living will forms by state, see Medical Decision Laws.
A Living Will is Not a Substitute for a Durable Power of Attorney
When making a living will or health care directives, 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 or incapacity, you can still make a living will.
However, no matter how comprehensive your health care directives are, many situations can arise which require an individual to make a decision about medical treatment on your behalf. Especially as we continue to see advances in health care and medical technology, it is impossible to foresee all the questions that may arise regarding your health care in the future. It is important to appoint an agent to make health care decisions for you in the event you are unable to communicate or make these decisions for yourself.
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 and appoint a health care agent. Check the laws of your state before executing health care directives to ensure you are using documents enforceable in your state. Click here for links to medical directive information for your state.
When is a Living Will Effective?
A living will becomes effective when you are in a permanent vegetative state, a permanent state of unconsciousness, or are terminally ill and unable to 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.
A living will is also sometimes called a health care directive or medical directive. 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 health care preferences to your physicians.
The primary purpose of a living will is to outline the medical situations in which the maker of the living will 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 is a very important document to make because it allows you to make your wishes known to your physicians on such measures as feeding tubes, respirators, defibrillators, cardiac resuscitation, hydration, and nutrition if you should become incapacitated, go into a coma or permanent vegetative state, or are otherwise unable to communicate at some time in the future.
The Terri Schiavo case is one example of what can happen when you don’t have a living will. Terri Schiavo’s family 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 Ms. Schiavo’s preferences regarding life support.
A living will is fairly easy to make and if it is ever needed, it can prevent disagreements among family members about your intentions concerning life support. It can save your estate the expense of legal fees and court costs that result when there is a dispute about pulling the plug. For those who don't want their family burdened with expensive medical bills, a living will is also an effective way to protect their 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 for health care. Discuss your health care directives with your partner, children, parents or close friends whom may be involved in any health care or medical treatment you 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 physicians in your state or whether an original is required.
If You Revoke or Change Your Living Will or Health Care Directives
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 of your living will or health care directives. Give them your revised living will or health care directives and ask them to destroy all other versions.
You May Need a New Living Will If You Move
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.
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 and health care directives in that state.