People sometimes confuse a living will with a last will and testament, which deals with the distribution of a person’s property upon their death.
A living will is a legal document that informs other people what a person’s wishes are regarding what kind of treatment they would and would not want if they become seriously ill or injured. For example, it may state to what extent a person wants to receive certain kinds of life-sustaining medical treatment in the event they become incapacitated.
A living will could inform doctors under what circumstances a person would want the doctors in charge of their care to forgo providing life-sustaining treatment, such as placing a person on a ventilator to keep them breathing.
To ensure that a person’s wishes are honored, healthcare providers or anyone else who knowingly violates a living will can be subject to legal consequences. For example, a relative might file a civil lawsuit against healthcare professionals who fail to follow the directions in a living will.
How Do I Create a Living Will?
What is required to create a valid living will varies among states. Most states require that a person sign the living will in front of witnesses; some states even require that the document be notarized. The main requirement is the same, however. A person’s instructions must be put in writing and signed by the person who makes the living will.
A person needs to do what the law in the state in which they live requires for a living will to be legally effective. In addition, for a living will to have legal effect, a person must be of sound mind when they make it and must have reached the age of majority, which is 18 in most states. A person should not wait until they are elderly to make a living will. The situations in which a person could need a living will can arise at any time in a person’s life.
What Should I Include in My Living Will?
A person’s living will should clearly state their wishes for medical care if the person is incapable of expressing their wishes. Some common topics people address in a living will include the following:
- Cardiopulmonary Resuscitation (CPR): This is a medical procedure that restarts the heart if it has stopped beating. A person wants to decide whether and when they would want to be resuscitated by CPR or by a device that delivers an electric shock to stimulate the heart after it has stopped.
- Mechanical Ventilation: Mechanical ventilation takes over breathing if a person is unable to breathe on their own. A person needs to express their wishes with regard to whether, when, and for how long they would want to be kept alive by a mechanical ventilator.
- Tube Feeding: Tube feeding supplies the body with nutrients and fluids directly into veins or through a tube in the stomach. A person has to provide direction as to whether, when, and for how long a person would want to be fed in this manner.
- Kidney Dialysis: Dialysis is a medical procedure that takes waste out of the blood and manages fluid levels. A person receives dialysis when their kidneys no longer function. It is used when a person’s kidneys no longer function. A person should direct whether, when, and for how long they would want to receive this treatment.
- Antibiotics or Antiviral Medications: Antibiotics are medicines that treat bacterial infections. Antiviral medications are medicines that treat infections caused by viruses. If a person were near the end of life, that person must decide whether they would want any infection to be treated aggressively or whether they would rather let infections run their course.
- Palliative Care: Decide what interventions a person would want to be used to keep them comfortable and manage pain while still respecting the person’s other treatment wishes. Palliative care may include being provided with pain medication, avoiding invasive tests or treatments, or even being allowed to die at home.
- Organ and Tissue Donations: A person wants to clarify whether they wish to have any of their remaining healthy organs removed to be donated to someone in need of an organ transplant. Some people also specify certain organs they want to exclude from donation, such as their eyes or skin. A person’s heart, lungs, kidneys, liver, eyes, and parts of their eyes are all organs that can be transplanted if they are healthy.
- Donating One’s Body or Parts of it to Science: A person can state in a living will whether they want their body or any part of it donated to science for research purposes.
What Is an Advance Directive?
In some states, an advance directive may be another name for a living will. In others, it may truly be a completely different document. In some states, an advance directive can be made up of several documents that all communicate a person’s wishes about their medical care to doctors and family members. The following are some of the issues that can be addressed:
- A Living Will: In some states, a living will is part of an advance directive.
- A Do-not-resuscitate (DNR) Order
- A Do-not-intubate (DNI) Order: This directs a doctor not to keep a person alive by intubating them to provide nutrition.
- Directions about Donation of Organs and Tissues: A person might address this in a living will.
- Specific Instructions: A person may want to give specific directions about specific diagnosed illnesses.
- A Medical Power of Attorney: This is an important document. It gives a specific named person the power to make healthcare decisions for a person if they cannot make and communicate decisions for themselves.
There can be an overlap between an advance directive and a living will. The important thing is not the document’s name but what it communicates. A person wants to address all of the issues listed above in a way that complies with the legal requirements of the state where they live.
No matter what your state calls them, these documents all serve the same basic purpose. In essence, they tell doctors and a person’s family about the person’s wishes for medical care in extreme circumstances when they cannot do this for themselves.
When Does a Living Will Take Effect?
A living will is effective as soon as it is made. Then when the circumstances call for healthcare providers to put it into effect, it should be followed. In most cases, this happens when a person has a medical condition that calls for the steps addressed in the living will, e.g., they suffer kidney failure and cannot express their wishes regarding dialysis to their doctor.
Of course, a living cannot accomplish anything if people do not know about it. A person should inform their doctor and their family that they have created a living will and ensure they either have a copy or know where to find one.
Lastly, living wills can be revoked by a person at any time while a person is still capable of revoking it. A person can modify the document as they see fit. To have legal effect, the changes they make must be made with the same formalities as when the living will was originally created, i.e., signatures, witnesses, notarization, and the like.
In some states, a living may not be considered valid if the person who created it is pregnant at the time they become incapacitated. A person might be able to avoid this by stating in the living will that it should be followed in all circumstances, including during their pregnancy.
There may be other exceptions depending on the laws of the state in which a person lives. If a person wants to be sure that their living will is going to have full legal effect in all circumstances, they would want to consult an attorney if they have questions.
Do I Need a Lawyer for Help With My Living Will?
Consider consulting a living will lawyer to ensure that your will reflects your wishes and is created as required in your state. Lawyers who draft wills are also fully qualified to draft living wills and any other documents that a person needs to deal entirely with the issues, e.g., medical power of attorney.
A LegalMatch lawyer can ensure that your wishes are clearly stated, that the document is properly witnessed and executed and that you do not forget to address any issues. Having a LegalMatch lawyer assist you with all of this will help avoid future disputes and ensure that your medical care is handled according to your wishes.