Some of the most important decisions you'll ever make include how to handle your end-of-life healthcare. Unfortunately, you may not be in a state to make those decisions when they matter most.
That's where a Living Will comes into play. With a Living Will, you make all relevant healthcare decisions in advance in case you can't express them on the spot.
Having a Living Will is an excellent way to provide peace of mind for yourself and your loved ones. Without it, the burden of making medical decisions falls on your closest relatives. This is an extremely difficult position to be in, which may cause confusion and conflict within your family.
A Living Will is a legally-binding document outlining your wishes regarding what should happen if you become terminally ill, unconscious, or otherwise incapacitated. Although a Living Will makes your decisions about personal care explicit, those decisions must still comply with state and federal laws.
A Living Will is different from a Last Will and Testament. While a Living Will dictates end-of-life care, a Last Will and Testament conveys instructions about your preferred funeral arrangements and how your assets should be divided after your passing. In other words, a Living Will, as the name implies, is used when you are still alive, while a Last Will and Testament only comes into effect after you die.
A Living Will can be used to address any type of medical care. Some common procedures include dialysis, resuscitation, organ donation, and tube feeding.
Depending on your state, a Living Will may also be known as:
Healthcare Directive
Advance Decision Form
Advance Health Care Directive
Advance Medical Directive
Every adult can benefit from having a valid Living Will, regardless of age and health status. Many unfortunate circumstances could render you unable to communicate your wishes and may impact the care you receive or the speed with which medical staff can make critical decisions.
That said, some people need a Living Will more urgently than others. If you're living with a terminal illness or about to undergo a serious medical procedure, it's vital to draft a Living Will.
In some states, your family will have limited power to make decisions on your behalf. In that case, a Living Will can give them broader authority. Ultimately, a Living Will is about making difficult decisions before it becomes even more difficult to make them.
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A Living Will isn't overly complicated, but it does need to have certain elements drafted correctly to be valid. With our proprietary form generator, you'll only need to answer a few basic questions to generate your Living Will.
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To create your document, please provide:
Effective Date: Date when the Living Will goes into effect.
Personal Information of Declarant: Your full name and address.
Healthcare Agent: If you have a healthcare agent designated through any other advance care plan, include their information and the document establishing them as your agent.
End-of-Life Decisions: Your preferences regarding end-of-life care. This can include decisions about a number of medical conditions, including terminal illness or injury, life support in the event of permanent unconsciousness, and do-not-resuscitate orders.
Persistent Vegetative State: A state in which brain damage leads to unconsciousness lasting at least four weeks with no clear end.
Anatomical Gift: Organ donation.
Ombudsman: In the Context of Living Will, this is a mediator between patients and hospitals or other care facilities.
Surrogate: Someone authorized to make decisions about your care if you're unable to do so.
HIPAA: The Health Insurance Portability and Accountability Act of 1996. An HIPAA provision in a Living Will allows your healthcare agent to access your medical records.
To be legally enforceable, a Living Will must be signed by the declarant of the will and two witnesses. Unless it specifically requires notarization, the signatures do not need a notary public to be valid. However, having the signatures notarized ensures they cannot be challenged later and is a good way to maintain the integrity of the document.
After signing your Living Will, retain a copy for your personal records. Make sure the people closest to you have access to it and know where to find it.
It's also a good idea to give one copy to your healthcare agent and one copy to your doctor. You may contact your local hospital and ask them to hold a copy on file as well.
Depending on the state where you receive your care, pregnancy may affect a Living Will.
A Living Will and an Advance Healthcare Directive both address the use of life support and other life-saving measures in the event of a life-threatening medical situation. However, an Advance Healthcare Directive also includes a section to appoint a Medical Power of Attorney who will make medical decisions on your behalf if you are unable to do so.
To be legally enforceable, a Living Will must be signed in the presence of two unbiased witnesses. Generally, it doesn't need a notarization to be valid, but using a notary ensures that no one challenges any signatures later and is a secure way to firmly establish the effectiveness of your document.
A Do Not Resuscitate order (DNR) is a request made by you to not have CPR performed if your heart stops beating or if you stop breathing. Hospitals will document DNRs in your record and will usually follow them even if CPR is likely to bring you back with a decent shot at recovery.
No. Your Living Will expresses your decisions about medical care. However, a medical practitioner is always free to refuse to honor your wishes.
While physicians have a legal duty to provide a standard of care, this usually doesn't include certain end-of-life treatments. Doctors may refuse to administer certain procedures based on the personal beliefs or policies of the facility where you are treated. This one reason why it's essential to consult your doctor when creating your Living Will.
There are no explicit requirements about who needs to be a part of drafting your Living Will. However, consulting your doctor about how comfortable they are honoring your Living Will is a good idea, and it can prevent any potential conflicts in the future. You may also consult an attorney to make sure the decisions you make in your Living Will are all compliant with state and local laws.
A Medical Power of Attorney establishes an agent to make decisions about your healthcare if you become incapacitated, whereas a Living Will expresses your personal wishes in advance.
At no point can an agent established by a Medical Power of Attorney override or countermand any of the provisions in your Living Will.
It's generally easier to create a new Living Will than it is to make changes to an old one. Collect and destroy all the signed copies of your outdated Living Will. Then, draft a new document updated to reflect your current wishes.
The laws governing your capacity to make decisions differ based on the jurisdiction where you receive care.
Typically, doctors will check if you can understand what they're telling you and the consequences of your decisions. Most states honor a doctor's judgment about whether you have the capacity to make healthcare decisions.
No. A Living Will only comes into play under very specific circumstances that you will decide when drafting it. Unless those circumstances come to pass, your summary decisions always take precedence over those in the Living Will.
No. There are some restrictions about who you can choose as a healthcare agent. There are also common-sense reasons why you should exclude certain individuals as healthcare agents.
Someone who is mentally incapable, under the age of 18, an operator of a healthcare facility in your community, non-relative employee at a healthcare facility, or your personal healthcare provider should not be your healthcare agent.
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