What is a living will?

A living will is a legal document that specifies what kinds of health care you wish to receive if you become incapacitated and can’t make decisions for yourself

Zack Sigel 1600

Zack Sigel

Published January 14, 2019

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A living will, also known as an advance directive or advance health care directive, is a legal document that specifies what kinds of health care you wish to receive if you become incapacitated and can’t make decisions for yourself.

The terms of the living will are set entirely by you. You can choose from any number of medical conditions and health care situations to which the advance directive will apply as well as the circumstances under which it will be ignored. Many people create a living will because they’re suffering from a terminal illness and don’t wish to be resuscitated during an emergency, but even healthy people might create a living will simply in case they have an unexpected illness.

The living will is distinct from the last will and testament. A last will and testament establishes how property in your estate is to be distributed after you die; it says nothing about your health care while you’re alive. By contrast, a living will makes no declarations about your estate or your loved ones’ inheritance.

A major part of the living will is creating a proxy to make health care decisions on your behalf, as if you were able to make those decisions yourself. This is called medical power of attorney, and the person you designate as having power of attorney is called your agent.

Read on:

What is a living will?

A living will is a document containing instructions for your care when you’re unable to make decisions. As an advance directive, it can direct what procedures you’re willing to undergo when you’re in a coma or when a medical condition severely diminishes your quality of life.

One of the most well-known forms of advance directives is the “do not resuscitate” order, or DNR. But “do not resuscitate” is just one clause among many potential health care demands in your living will. For example, you can also demand not to be intubated or kept alive with an artificial breathing apparatus.

You can use a living will to both ask doctors not to keep you alive and to state that you do wish to be kept alive, regardless of your medical situation. You can also choose which treatments you approve and which you don’t. Some of those treatments include:

  • Mechanical respiration, such as using a breathing machine
  • Dialysis
  • Restarting your heart, either from CPR or a defibrillator
  • Intubation, such as for feeding by tube
  • Giving medications, like antibiotics
  • Mental health treatment, including physical restraints and electroconvulsive treatment
  • Palliative care, including whether to use pain medications that could accelerate death

While your living will can consist of any medical demands you desire, some common instructions include:

  • Whether to give you hydration or nutrition
  • Whether you wish to be an organ donor, and, if so, which organs you wish to donate
  • Which hospital you want to be treated in, if possible
  • Whether you want to die at home or in a hospital
  • Whether you wish to donate your body to science or to a medical school for research

If you’re in a medical crisis but there’s still the possibility that you can recover, your advance directive can even state that you wish to continue receiving treatment up to the point that it becomes clear that you won’t get better.

Once you have a living will, you can make updates to it whenever you want. For example, your attitude toward dying or medical treatment may change over time; you might also want to update it whenever you get married, have a kid, get a divorce, or receive a new diagnosis.

Limitations of a living will

The living will is an important part of end-of-life care, and it can help ease unnecessary suffering or guide treatment according to the way you feel most comfortable. But they’re not always useful if your doctor isn’t aware that you have one.

In the case of emergency medical treatment, the doctor sometimes needs to make a quick decision about your care without seeing the advance directive or consulting with your family. For that reason, living wills are most useful for scenarios that occur over longer periods, such as deciding whether to begin surgery or treat an illness with a powerful medication.

To avoid this scenario, you should inform your doctor ahead of time if you have a living will and give him or her a copy of it.

Sections of a living will

Living wills vary in size. State laws also govern what kinds of information living wills must contain. While that means every living will is going to look different, they often contain some of the following sections.

Which life-saving procedures you want

This is the section containing the many different types of life-saving procedures that you may undergo when in critical condition. Often, this section comprises a simple list of procedures with the option to check Yes or No for each one. You should be able to describe any other types of treatments not listed there and whether you wish to receive them or not.

Designating power of attorney

In this section, you designate someone to have power of attorney, also called a health care proxy. This is a durable power of attorney in that it stays in effect even after you’re incapacitated. A person with medical power of attorney – your agent – has the legal authority to make decisions on your behalf that must be followed.

You can select multiple co-agents to work together on your behalf, as well as alternate agents to replace any agent who declines to receive power of attorney.

You’ll also have the chance to list family and friends who should be consulted about your health care. Although they aren’t legally allowed to make medical decisions the way your agent can, such “interested individuals” can help guide your care and communicate your wishes. You can also list people who should not be consulted about your care.

Statement about your values and priorities

This is a written portion of the advance directive that helps explain your wishes. You’ll have the ability to state in your own words how you’d like to be treated.

Waiver of right to request or object to treatment

Sometimes, when certain medical treatments make you uncomfortable or frightened, you may object to them even if you know they’re beneficial to your health. In this section, you can give your health care proxy the ability to object to your objection or even to requests you make that could be deleterious to your health. That means if you do have the capacity to request or object to treatment, the person with medical power of attorney can overrule you when this waiver is in force.

Consenting to participate in scientific research

This section allows you to consent to have your body examined by medical school students or researchers conducting drug trials.

Autopsy and funeral wishes

Your living will can state that you want to undergo an autopsy, or even that you want to have an autopsy when one is otherwise deemed unnecessary.

You can also describe funeral arrangements, including whether you want to be buried or cremated, or whether you want to leave the decision up to your family, your agent, or someone else. If you already have funeral arrangements in place, you can list the funeral home and its address.

How to write a living will

A living will doesn’t need to be a long document full of legalese, but that certainly helps it withstand challenges in court. You can ask a lawyer to create one for you, or you can save money by downloading living will forms online.

Once you fill out the paperwork, the living will still needs to be signed by a notary and two witnesses. Who’s eligible to be a witness depends on your state; for example, your state may prohibit using witnesses that are your immediate family or your agent. Witnesses must also be of a certain age. In Vermont, your witnesses must be at least 18 years old, but in Texas, they can be as young as 14.

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Living trust vs living wills

The only similarity between a living trust and a living will is the word “living” in the name. As with a last will and testament, a living trust allows your assets to be distributed to your heirs according to the terms of the trust. Also called a revocable trust, a living trust sets certain conditions that must be met for your beneficiaries to receive the trust assets.

A living will does not distribute any property you own. The whole purpose of the living will is to allow or disallow certain health care situations that may occur when you’re physically or mentally incapacitated.

To make sure your end-of-life wishes are met, you need a living will. But to make sure that your loved ones receive their inheritance, you need to create a last will and testament or a trust. After you die, your revocable trust becomes irrevocable, since you were the only one who could legally make changes to it.

How to revoke a living will

A living will is easy to revoke if you’re still able to and it can be done at any time. You can formally revoke the living will in writing – no witnesses or notary required – or you can simply destroy all copies of it.

You can even revoke a living will verbally to a physician. You’ll want to do this if you’re being treated for an unexpected illness but have a sudden change of heart about your living will. In many cases, there won’t be enough time to formally revoke your living will, so you can express your wish to do so with your health care provider.

Where to keep a living will

You should keep a copy of your living will in the same place you keep your last will and testament, any trust documents you have for revocable or irrevocable trusts, and other important records like your life insurance policy.

Copies of the living will should be given to anyone you designate as an agent or co-agent, as well as family, close friends, and anyone you might entrust to your wellbeing, such as clergy. Give copies of the living will to your doctors as well. Everyone who has a copy of your living will can be listed in the document itself for better coordination when you’re undergoing a medical crisis.

Some people keep a card in their wallet indicating that they have an advance directive. If you register your living will with a living will registry – both state registries and commercial, fee-based registries are available – you should receive a card describing how to locate your living will. Often, it’s as simple as logging into the registry and downloading a copy.

Policygenius’ editorial content is not written by a certified financial planner or advisor. It’s intended for informational purposes only and should not be considered legal, financial, or investment advice. Consult a professional to learn what financial products are right for you.

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