Living Will

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A living will has many different names, including an advanced healthcare directive, personal directive, advance directive, or advance decision. The document allows the writer, or testator, to specify a medical or healthcare proxy who will make decisions for the testator’s regarding treatment based on the living will’s specifications. These documents can help the testator clarify their wishes in the event that they are incapacitated due to illness or injury.

Although this type of will specifies how the proxy should handle the testator’s medical treatment, it is not the type of will that involves management or distribution of property to beneficiaries. The document specifically provides for medical treatment and/or end of life treatment if the testator is no longer able to make their own decisions. The proxy loses powers provided in the living will when the testator passes away.

How is a Living Will Used?

Living wills prevent family members and doctors from having to guess your wishes if you are no longer able to express them. For example, you can specify that you would like to be kept on life support as long as feasible, which palliative or comfort treatments you wish to pursue, or where your limit is for a “Do Not Resuscitate” order to begin. If you do not leave a living will, your family could disagree on your best course of treatment which could lead to legal disputes.

Generally, a living will’s powers to the proxy end when the testator dies. However, if you wish to have your organs donated, have an autopsy performed, or have specific actions taken with your body immediately after your death, a living will allows you to make those wishes clear, and will provide some extended powers to your proxy after your death.

You may wish to have a healthcare power of attorney document instead of or in addition to your living will, which is encouraged. There is a huge difference between healthcare power of attorney documents and living wills: a living will forces your proxy to follow your healthcare wishes, while a healthcare power of attorney designates your preferences, and names a proxy to make decisions on your behalf. However, those decisions do not have to be exactly in line with your last wishes, unless you provide a living will.

Although you do not legally have to file a copy of your living will with friends, family, your doctor(s), or the government, you should supply your primary physician with a copy of your living will, especially if you believe that someone will contest the contents, or you are about to undergo serious medical treatment.

Important Elements of a Living Will

  • Put your living will in writing. Although several states allow oral living wills, which is basically a verbal agreement between yourself and your proxy, you should ensure that everyone potentially involved knows your wishes. This can be especially important if you have family in other states who may become involved in your medical treatment.
  • Consider your personal ethics on medical treatment. You do not have to follow modern cultural convictions regarding standards of life or end of life care. Think about what you want, and write that down. You can change your living will at any time as long as you are of sound mind, as you change your philosophy and as important people move in and out of your life.
  • Research end of life, life-sustaining, and palliative care treatments. Understanding what a feeding tube does, what dialysis does, what chemotherapy does, and what different types of pain management mean can help guide your ethics around your medical care.
  • Make sure to have a notary and at least one witness sign and initial the document. This lends legal credibility to the fact that you were of sound mind and were not coerced into writing specific medical statements.
  • Download our free form. Few people need an attorney’s advice to fill out a living will. If you have complex questions or reason to believe your living will could be contested, you may wish to consult an attorney, but this basic form can guide you regarding your living will’s provisions.