What’s a Living Will? And How Do You Make One?

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When most people think of making end-of-life estate plans, they think of making a last will and testament (a will). But there is more to effective planning than just a simple will. Proper end-of-life planning involves not only making decisions about the transfer of property at death but also making healthcare decisions during life. 

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There are several ways to make healthcare decisions during life when you are incapacitated and unable to make decisions for yourself. The most effective way to make your own healthcare decisions is to have a living will.

However, to be sure you have a valid living will that accurately expresses your wishes for end-of-life preferences, you must make your living will now, while you are still mentally competent to do so. 

What’s a Living Will?

A living will is a legal document you create during your life when you are mentally competent to make your own decisions. In your living will, you communicate your wishes for end-of-life medical treatment if you should ever become incapacitated.  

If you are relatively young and in good health, you might think that there is no rush to have a living will. After all, research shows that the average age for the onset of elderly dementia is 80 years old. Therefore, you may think you have plenty of time before you need to worry about becoming mentally incapacitated and make healthcare decisions. However, living wills are not just to prepare for mental incapacity associated with old age. Incapacity can become a reality at any time in life as a result of an accident, illness, disability, or early-onset dementia.

If any of these circumstances were to befall you, causing you to be unalterably unconscious or incapacitated, a living will expresses to your doctors and family members your preferences for any available life-sustaining medical treatment, such as:

  • Artificial ventilation
  • Tube feeding for food and hydration
  • Cardiopulmonary resuscitation (CPR)
  • Antibiotic treatments
  • Pain medication

In your living will, you will indicate whether you would like your medical doctors to perform any of these procedures to sustain your life if you are in an unalterable state of incapacity. Indicating your preferences in your living will avoids the need for your family to make difficult decisions for you and gives them the peace of mind that wishes on these issues can be carried out.

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Is a living will an advance directive?

Although some may refer to a living will as an “advance directive” or “advance medical directive,” a living will is not exactly the same thing as an advance directive. However, a living will is a type of advance directive. It can accomplish the same things that an advance directive can accomplish.

A living will focuses solely on life-sustaining medical procedures. An advance directive can do the same, but it also can cover more general preferences, such as naming a healthcare proxy to make medical decisions on your behalf.

This can be important if a situation arises in which you do not have a living will or when your living will does not cover the type of situation you are in or the medical procedure being considered to sustain your life. 

What’s the difference between a living will and a will?

There are two primary differences between a living will and a will. First, although both instruments are created during life, a living will also operates during life, whereas a will only operates upon your death.

A living will is used during life as a way of expressing life decisions involving your medical care. A will is used after death as a way of expressing decisions about the distribution of your property after you die.

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What forms are included in a living will?

A living will form is a simple document that includes your stated preferences for end-of-life medical treatment in case you are incapacitated at a time when a decision has to be made. Although a living will is a type of legal form, it does not have to appear on a certain type of paper or include any particular documents with it.

However, there are two completely separate documents that often are executed with a living will. These are:

  • Medical Power of Attorney: A medical power of attorney may supplement your living will by naming a healthcare proxy to make decisions for you in situations not covered by the terms of your living will.
  • Physician Orders for Life-Sustaining Treatment (POLST): In states that recognize them (there are a little more than a dozen), POLST forms also are a way to assure your medical wishes are carried out. POLST forms are separate from your living will and physically stay with you as you move from one health care provider to another.
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How to Create a Living Will

Because a living will and a will must be created during life and when you are competent, and because they complement each other to address many of your end-of-life issues, it is always a good idea to create them at the same time. However, many people shy away from creating a living will because they don’t know what it is or how to make one.

There are different rules for creating living wills in each state. You should know what the rules are in your state before you create your living will. However, the basic requirements for creating a living will are very simple. Just follow these three steps. 

Step 1: Draft your living will

Because a living will simply contains your stated preferences for end-of-life medical treatment in case you’re incapacitated, you can write your living will yourself. There are no special legal terms or concepts that must be included.

However, there may be certain rules in each state that are relevant to your living will. If you are unsure what is required for your living will, you should consult an attorney. An attorney can advise you on how to draft your living will or may draft it for you.

Alternatively, you could go online and access an online will service, many of which offer legal documents in addition to wills, including living wills. You may be able to find a living will form that is appropriate for your state that you may simply fill in, print out, and sign.

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Step 2: Sign your living will

Sign your living will so that your family and healthcare providers know or can confirm that your living will is yours and that what it contains is what you intend under the circumstances you are in. States may differ slightly about how or where your living will is signed so you should know the rules in your state. As long as you sign and satisfy the applicable rules in your state, you should not need anything else to validate your living will. 

Note, however, that some states may require that your living will be witnessed or notarized. Even if not required, it’s a good idea to sign your document with a notary to avoid any questions later regarding your identity or signature.  

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Step 3: Make sure your healthcare provider and family members know

Once you have drafted, printed, and signed your living will, give it to your primary healthcare physicians and preferably more than one family member or friend.

You must make sure that if or when you do become unexpectedly incapacitated, someone knows what your wishes are and how to verify them by producing your living will. 

Living Wills: Frequently Asked Questions

Many people do not know what a living will is or confuse it with a simple will. As a result, people ask common questions about living wills. Here are some of the more common questions and some simple but informative answers.  

Why is a living will important?

If you do not have a living will and are incapacitated and in an unalterable comatose or incapacitated state, doctors will not know whether you want them to artificially sustain your life.

This puts the burden of making that decision on your family. You can avoid burdening your family with this decision by having a living will.

Are there any drawbacks to creating a living will?

No, not really. If you want a living will but do not want to do it yourself, you can use an online will service or hire an attorney to draft your living will. These may cost anywhere from $50 to $200. 

Other than a nominal financial drawback if you do not create your living will yourself, there are no real drawbacks to having a living will. If you ever change your mind about your stated preferences, you can revoke or change your living will at any time as long as you are competent to do so.

The only drawback regarding what is in your living will may be that if you draft a living will and then change your mind, but you become incapacitated before you can revoke or change your living will, then your physicians and family members are likely to carry out your wishes stated in your living will. Here is where designating a health care proxy in your living will may prove helpful.

What’s the difference between a living will and durable power of attorney?

A living will includes your end-of-life medical preferences that you decide. Any agent named in your living will is obligated to follow them. H

owever, a medical power of attorney primarily grants another party — your power of attorney — the authority to make your decisions for you. It is good to have both so that your decisions for end-of-life medical care are represented under any circumstances.

Does a living will need to be notarized?

This depends on the state in which you live. Some states may require that your living will be witnessed and/or notarized, but others may not.

If you are not sure, it is best to have your living will notarized. There is no harm in notarizing it, but it could eliminate potential problems later.

Who makes decisions if there’s no living will?

If you do not have a living will, anyone you name as a medical care power of attorney may be able to make your decisions for you.

If you also do not have a medical power of attorney, your doctors will consult with your immediate family members or a close friend to make your end-of-life decisions for you. This is something that most families do not want to have to do.

It’s Important to Have a Living Will

A living will ensures that your preferences for life-sustaining medical treatment during life are carried out and also alleviates an enormous burden from your family members or friends to have to make such decisions for you.

There’s no good reason not to have a living will. If you do any end-of-life planning and sign any relevant legal documents, like a will or power of attorney, be sure to include a living will as a document you sign. A living will is simple to make and important to have.

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