Living Wills


You have the right to complete a document referred to as a Living Will that sets out, in writing, your wishes about certain kinds of medical treatments and life-prolonging procedures in the event that you become terminally ill and there is no reasonable expectation of recovery.

Some people ask to be kept alive as long a possible.  Other people prefer that if there is no reasonable expectation of recovery, they no longer want to live.  You can even elect not to make a choice regarding whether or not you want to receive life-sustaining medical treatment, and delegate this decision to your appointed health care agent.

If you are well enough, you can tell your doctors what types of medical treatment you want or don’t want.  If you can’t speak, a living will describes what you want done or not done if you are terminally ill with no likelihood of recovery.

Some states combine a Living Will document with a Health Care Power of Document into a single form often referred to as an Advanced Health Care Directive or Directive to Physicians.

FACT:  Advanced Health Care Directive.

These states have adopted the use of an advanced health care directive, a single form documenting your end of life choices and your designation of a health care agent:  Alabama, Arizona, California, Connecticut, Delaware, District of Columbia, Hawaii, Kentucky, Minnesota, Mississippi, Nevada, New Jersey, New Mexico, Oklahoma, Oregon, Pennsylvania and Virginia.

Here are some common questions and answers regarding living wills.

Q.   Why do you need to complete both a living will and a durable health care power of attorney?

A.   A living will answers the question:  What do you want done if you are eing kept alive through an artificial life support system?   Do you want to be kept alive at all costs or would you prefer to be allowed to die if there is no reasonable likelihood that you will ever get better?   No matter which choice you make, state laws assure that you will continue to receive medical or other treatment available to alleviate pain.

A durable health care power of attorney answers the question:  Who do you want to make decisions about your health care if you can’t?  If you have chosen to be allowed to die, your health care agent is empowered to carry out the instructions in your living will.    He or she can meet with your doctors and decide what treatments you will or will not receive.

Both documents are important parts of planning for old age.    A living will is a document relatively narrow in scope–it only applies to those circumstances described in the document.  In contract, a durable health care power of attorney vesta a person with types of authority to make various decisions and thus applies to a wider range of potential health care circumstances and decisions.


Q.  What if you have not completed a living will?

A.  In the absence of a health care power of attorney or a living will, sometimes a phyusician will work with the spouse or family to carry out your wishes if the spouse and/or all members of the family agree on what to do.

Often, legal problems occur when family members do not agree on what was your intent and what should be done to carry out that intent.

Some state statutes specify who has the right to make health care choices for you if you have not identified a health care agent, usually a spouse, adult children or parents.  Some states only require the consent of one person; some states require unanimous consent from adult children or parents  Without consensus, doctors have no choice but to provide life sustaining treatment.


Q.  How long is a living will effective?

A.  A living will ends when you revoke the document.  If you want to change any of the instructions contained in your living will, you should prepare and sign a Notice of Revocation form.  Give a copy of the Notice of Revocation to your health care agent, your physician, and anyone else who has a copy of your living will or other advance directives.    Destroy both the original and any photocopies of the form.

You can then create a new living will or advanced health care directive documenting your wishes.

If you are not able to prepare a Notice of Revocation, you can tell your doctor or health care provider you want to cancel your directive.


Q.   How do you make a living will?

A.   You can make a living will several ways.

You can hire an attorney to help you complete the forms.  Often, attorneys provide these forms as part of an estate planning package when you create a will or a living trust.

In Arizona and California, legal document assistants can often provide forms for you to complete.

You can do it yourself using software and forms available on the web or on your personal computer.


Q.   What if the state you live in does not have living will statutes?

A.  The fact that the state you live in has no law concerning living wills does not mean that you should not complete a living will document.  Most states without living will statutes recognize living wills, but may rely on the court decisions on the intent of the instructions contained in our living will.  Your living will continues to provide evidence of your intentions.

Currently, these states do not have living will statutes:  Massachusetts, Missouri and New York.