A living will is a legal document that specifies a person's wishes regarding medical treatment; specifically treatments that will prolong life. This form is prepared before it is actually needed and is used if you are unable to make medical decisions for yourself due to severe injury or a medical condition. It will typically detail any Do Not Resuscitate (DNR) order. It may also be used for people who wish to refuse certain types of medical treatment for personal or religious reasons, such as blood transfusions or life support should they fall into a coma.
Only someone who is 18 years or older and of sound mind can create a living will. Creating a living will means you need to choose a party you trust to carry out medical wishes on your behalf. This could be a family member, trusted friend, or an attorney. However, many states have specific laws in who can act on your behalf with a living will. You may also need two witnesses and to have all signatures witnessed by a notary public. Your state law will also explain who can act as a witness.
Living wills have several other names. Some of which include:
Advance healthcare directive
Directive to physicians and family or surrogates
A living will is an important document because it gives you a way to make your decisions known related to future medical treatment and end-of-life care for a time when you’re unable to express your wishes. All living wills must comply with the appropriate laws in the state in which they are drafted; although, states will generally support a living will originally drafted in another state as long as it is placed on file with the treating physician. Here are the four steps you should follow to create a living will.
If you’re unable to express your wishes related to your own medical care if you’re in a terminal state because of an injury or disease. It is also used if you’re in a non-responsive coma or if you’re in a vegetative state. What are your preferences? Do you want artificial nutrition and hydration? Are there certain medical procedures you don’t want? Keep in mind that the decisions you place in this document for your medical care are final decisions. Think carefully.
Do you want artificial hydration and nutrition? Do you want to be resuscitated? Do you only want comfort care such as pain medication? You should also include your wishes for last rights, your funeral, or cremation.
This is the person you designate to help make sure that your wishes are followed. This person will also make decisions for you related to healthcare and end-of-life that you did not mention in your living will. They are to make those decisions with your best interest as well as what they believe you’d want in mind.
Your living will isn’t an active legal document until it is signed by you. Most states also require that the document be signed by two witnesses. Some states require it to be notarized.
An agent plays an important role when you’re no longer able to make your own decisions. It’s important that you choose the right person. Choose someone that you trust will enforce your living will. It can be an adult you’re related to, such as a spouse or adult child, or it can be someone to whom you’re not related. However, you cannot name your doctor, anyone who works for your doctor, or anyone who provides you with medical care unless you are directly related to that person (for example, your spouse).
The agent’s job isn’t always easy. In addition to ensuring that your wishes are followed, they must also make decisions that they believe you’d want if you didn’t address those issues in the document. This doesn’t always go over well with other family members or friends.
Depending on the state where you live at the time you create your living will, your agent may be referred to as an attorney-in-fact, a surrogate, or a healthcare proxy.
Yes, everyone who is a legal adult should have a living will. Having this document means that medical professionals will treat you exactly as you wish if you can no longer make your own medical decisions. This takes the stress off of your family, too.
Living wills are just as important for younger adults as they are for older ones. No one anticipates becoming unable to make their own decisions. Living wills are essential for determining whether you want your organs donated to save lives. Without one, no one, not even your spouse or parents, can make legal, financial, or healthcare decisions on your behalf without a first obtaining a court order.
There are other healthcare documents similar to a living will, including a durable power of attorney for healthcare and an advance directive. However, there are important distinctions between these documents.
Here’s a breakdown of those differences:
A living will details your healthcare and end-of-life decisions, as well as end-of-life care wishes.
A durable power of attorney grants a specific person the authority (healthcare power) to execute your healthcare wishes and make medical decisions on your behalf if you’re unable to do so.
An advance directive combines the authority and coverage of a living will and a durable power of attorney.
A last will and testament is a written legal document which outlines a person's decisions regarding the passing on of his or her possessions to relatives and friends upon his or her death.
Your state law may advise you on which form you should use.
AL (§ 22-8A-4): can only be created by adults who are considered legally competent. This document appoints a healthcare proxy to make decisions, including but not limited to, the withholding or withdrawal of life-sustaining treatment.
AK (AS 13.52.010): gives a surrogate the legal power to make physical health and mental health decisions if a guardian has not been appointed or if the guardian isn’t considered reasonably available. Surrogates that may be named include certain members of the family including the spouse (unless there is a legal separation), an adult child, a parent, or an adult sibling.
AZ (§ 36-3201 to § 36-3210): allows for another person, known as an agent, to agree to or withhold comfort care, make medical decisions, and make mental health decisions for the named individual who can no longer make their own decisions. An Arizona living will does not have any effect if there is a medical power of attorney or a mental health power of attorney in place.
AR (§ 20-17-201 to § 20-17-218) known as the Arkansas Rights of the Terminally Ill or Permanently Unconscious Act. Must be signed by the declarant in front of two witnesses.
CA (§ 4600 to § 4736) may not be use for commitment or placement into a mental health treatment facility. Does not allow for decisions to be made related to abortion, sterilization, mercy killings, assisted suicide, or euthanasia.
CO states that living wills are revocable by verbalizing or writing revocation; tearing, burning, canceling, or destroying the document. Colorado law provides immunity to hospitals and physicians acting under the direction of a healthcare proxy named in a living will.
CT (Chapter 368w) states that proof of a living will must be presented to the physician. While a spouse may be named as a healthcare proxy, the proxy is terminated if there is a divorce or legal separation.
DE (§ 2502 & § 2503) Section 2501 provides specific powers including the right to refuse medical or surgical treatment and ceasing treatment. Living wills are revocable as a whole or in part.
FL (§ 765.303) If there is no advanced directive, healthcare decisions may be made by a guardian appointed by the court or the guardian advocate, the spouse, an adult child, a parent, the adult sibling, an adult relative, a close friend, or a licensed clinical social worker. It is the duty of the person creating the document to notify their attending or treating physician that they have a living will.
GA (O.C.G.A. Title 31 Chapter 32) provides a form for the creation of an advance directive for health care, but also states that any document that meets the qualifications as set forth by Georgia law shall also be treated as such. Existing living wills or durable powers of attorney for healthcare executed before July 1, 2007 are not affected by current law.
HI (Chapter 327 E-3) An agent only assumes their power when the principal lacks capacity as well as meeting whatever specific actions are mentioned within the document. The agent must make decisions that comply with the principal’s instructions or the principal’s wishes to the best of their knowledge.
ID (Title 39, Chapter 45) allows for the suspension of a living will by a written suspension notice created by the patient, verbal expression by the patient that they want the document suspended, or by any other act that makes it clear that the patient has the intention to suspend the living will. Living wills remain in effect unless it is revoked by the creator of the document.
IL (§ 755 ILCS 35/1) includes sample wording for a living will. The document may be revoked at any time by the declarant regardless of their mental or physical condition.
IN (§ 16-36-4-10) requires that the attending physician certify in writing that the patient has an incurable injury, disease, or illness; that death will occur within a short period of time; and that using life-prolonging procedures would only artificially avoid the dying process. The declarant has the right to decide in the document whether or not they want artificial nutrition and hydration withdrawn or withheld.
IA states that an attending physician who is provided with a living will must determine that the declarant is in a terminal condition. This opinion must be confirmed by another physician as well as recording that determination in the patient’s medical record.
KS (KSA 65-28,101) provides competent adults with a way and fundamental right to make their medical care desires known for a time when they are no longer able to make their own decisions. Patients may also use this document to state whether they want to withdraw or withhold life-sustaining actions, such as artificial nutrition and hydration.
KY (§ 311.623) may be used to withhold or withdraw life-prolonging treatment. It also provides space to explain if any or all of the adult’s body may be donated after death.
LA (§ 1299.58.1) states that the purpose of the law is to give individuals with a terminal or irreversible condition the ability to protect their personal dignity. It also provides individuals with the right to withhold or withdraw artificial life-sustaining procedures.
ME (§ 18-A §5-802) states that agent must make healthcare decision according to the instructions of the principal or to honor what the agent believes the principal would want done. An advance healthcare directive may also be used for mental health treatment.
MD states that certification of incapacity is required by two physicians, one being the attending physician, within two hours of examining the patient before the orders related to healthcare, including the withholding or withdrawing of life-prolonging treatments, may be honored. The law also provides a suggested outline for a living will.
MA (No Statute)
MI (§ 333.5651 to § 333.5661) defines an “advanced illness” as a medical or surgical condition that causes significant function impairment that isn’t reversible and that will result in death. This law also explains the duty that the physician has to inform the patient and / or the surrogate of recommended medical treatment both orally and in writing.
MN (Chapter 145C) supports healthcare directives and similar documents from other states as long as that document adheres to the law in the jurisdiction from which it arises. The law also provides ways in which the healthcare directive may be revoked.
MS (§ 41-41-201 thru § 41-41-229) unless stated otherwise in the document, an advance healthcare directive take effect only when the declarant is considered incapacitated by their primary care physician. The declarant has the legal right to revoke all or part of the healthcare directive, except for the agent designation, at any time and by communicating this in any way.
MO (Chapter 459) The law states this document may be revoked at any time and in any manner that the declarant is able to use to communicate. Their mental or physical condition isn’t considered at the time the document is revoked.
MT (§ 50-9-101 to § 50-9-111) This law states that unless given a reason to believe otherwise, healthcare providers may assume that the living will presented is valid. The living will must be made known to the attending physician or the attending advanced practice registered nurse.
NE (No Statute)
NV (§ 449.535 to – § 449.690) Physicians may consider the living will valid unless given a specific reason to believe it isn’t. The law does not support mercy killing, assisted suicide, or euthanasia.
NH (§ 137-J:1 to § 137-J:37) states that every person has the right to make their healthcare decisions in advance, including an order of “Do Not Resuscitate.” An agent may be named to ensure those decisions are honored and make other decisions due to the declarant’s temporary or permanent lack of capacity.
NJ (§ 26:2H-57) If a spouse is named as a healthcare representative, the representation is revoked if a divorce occurs. If domestic partnerships or civil unions are dissolved and the partner was named as the healthcare representative, that representation is nullified.
NM (§ 24-7A-2) The named agent is required to honor the written wishes of the declarant as well as to make decisions in a way that they believe the declarant would want if there are no specific instructions. This document may also be used to name a guardian for the declarant.
NY (§ 2994-A to § 2994-U) Incapacity must be determined by the attending physician. There must be a determination that the patient will not recover their ability to make decisions, and a secondary opinion of the same nature must also be given before the document becomes effective.
NC (§ 90-320 to § 90-323) Within the law, the living will is referenced as an Advance Directive for a Natural Death (“Living Will”). The declarant’s signature must be witnessed and notarized.
ND (§ 23-06.5-01 to § 23-06.5-19) states that a healthcare directive may only be created in writing. The agent must accept their appointment and they retain the right to withdraw as agent.
OH (§ 2133.01 to § 2133.26) defines life-sustaining treatment as a medical procedure, treatment, intervention, or other action that is served to prolong the life. The document must be provided to the attending physician of the declarant for it to be effective.
OK (§ 63-3101.1 to § 63-3101.16) states that the Advance Directive must be included in the patient’s medical record. Designations within the Advance Directive may be made, and must be honored, because of personal or religious beliefs.
OR (ORS Chapter 127) states that an advance directive can be created and used by either a state resident or someone who is in the state and is not a resident. The principal’s signature must be dated as well as witnessed by at least two adults.
PA (§ 5421 to § 5488) Provides that a pregnant woman will be provided with life-sustaining treatment even if she has an advance directive in place that states she does not want that treatment so that the baby may come to term or have a chance at survival. If an advance directive lists a spouse as the agent, the agency role is cancelled if the couple divorces.
RI (§ 23-4.11-1 to § 23-4.11-15) The Rights of the Terminally Ill Act provides that adults 18 years or older may make their healthcare decisions known via written document and have it placed in their medical file for use if they are diagnosed with a terminal condition and can no longer voice their own decisions. If the directive is revoked, that revocation must also be made part of the declarant’s medical file.
SC (§ 44-66-10 to § 44-66-80) states that guardians appointed by a court take precedence over the named attorney-in-fact of an advance directive. This document can also be used to name a family member with whom the doctor may discuss a medical condition.
SD (§ 34-12D-1 to § 34-12D-29) specifically states that withdrawing or withholding life-sustaining treatment is not considered homicide or suicide. Healthcare providers may assume that the document is valid unless they have actual knowledge that it isn’t.
TN (Title 32, Chapter 11) The law states that if the healthcare provider wasn’t made aware (in advance) of the document’s existence, they will not be civilly or criminally liable for not following the declarant’s wishes. They are also not subject to administrative penalties.
TX (§ 166.033) states that if a medical power of attorney exists, an agent doesn’t need to be named in the advance healthcare directive. The law also states that if someone does not name an agent and does not have a medical power of attorney in place, a spokesperson will be chosen in accordance with Texas law.
UT (§ 75-2a-101 to § 75-2a-125) states that surrogates must make healthcare decisions that are as close to the principal’s wishes as possible. The law also provides several methods in which a living will can be revoked.
VT (§ 18-231-9700 to § 231-9720) states that when the patient is determined to be incapacitated that the document itself shall serve as the guiding factor for agent decisions. It also gives medical professionals to make those decisions in limited circumstances.
VA (§ 54.1-2981 to § 54.1-2993) states that the document will be used when the patient becomes incapable of making their own informed decisions. The law also provides a suggested format for the document.
WA (RCW 7.70.065) If a physician cannot support the requests within the living will, they must notify the patient and / or the patient’s agent. The patient and / or their agent has the right to decide whether they want to continue care with that physician.
WV (§ 16-30-4) When the patient is admitted to a healthcare facility, the staff should be informed of the executed document. State law also provides a simple version of a living will for use by others.
WI (§ 154.03) This document can only be used if the declarant is diagnosed with a terminal condition or a persistent vegetative state by two doctors. One of those physicians must be the attending physician.
WY (§ 35-22-403) An advance healthcare directive may be limited in a way that it will only be used under certain circumstances. The document may also list a person that the patient wants to take over guardianship of them and their affairs.
In the first section of a Living Will, enter the name of the Declarant. This is the person who will be releasing control of their healthcare decisions to another individual. Enter the Declarant’s full name, as well as their full address (including city, state, and zip code).
Declare the name of the Healthcare agent by providing their full name, their address (including city, state, and zip code), as well as their telephone number.
Once you’ve declared your desired Healthcare Agent, provide the information of the Alternate Agent that you would like to designate. Provide the following about your Alternate Healthcare Agent:
Enter the stipulations in which you would like your Declarant to make necessary decisions. This can be upon a diagnosis, upon a medical treatment, or other situation that would trigger the Agent’s power into effect.
State the provisions that will be granted to the Agent. Here, specify the circumstances in which the Agent will be granted decision-making power. These circumstances include:
Further specify the circumstances in which your agent will be able to take actions on your behalf. These circumstances will range from receiving life-saving treatments such as CPR, to receiving medications as common as antibiotics. Regardless, these powers allow you to specifically decide what powers you wish to grant to your agent.
State whether or not you wish to donate your body, or organs. This section allows you to specify which, if any, organs or tissues you wish to donate should you pass away. Additionally, you may donate your entire body should you desire. You may also delegate which for purposes you would like your body, organs or tissue used.
If you are female and become pregnant, you may appoint your Primary Care Physician to make decisions on you and your fetus’ behalf. To appoint a Primary Care Physician, provide the following information of the healthcare professional:
To officiate the document, the Declarant must sign and date the document, certifying that these are their wishes and that they are of sound mind. Additionally, the following information must be provided of both attesting witnesses:
Many states require that a Living Will be certified by a state-registered Notary Public. Be sure that this document is notarized, and that the Notary Public fills out the appropriate information below so that your Living Will can be recognized by a court of law and healthcare institutions.
Whether a doctor or attending physician should perform CPR if your heart stops beating
Whether you should be placed on and/or kept on life support if in a coma
Whether you want artificial nutrition if you cannot eat or drink on your own
Whether you want dialysis if your kidneys fail
Whether you want antibiotics or antiviral medications to treat infections
Whether you want to die naturally or receive comfort care
Whether you want to donate organs and/or body tissue
Whether you want to donate your body to medical research and study
Realistically speaking, your living will cannot provide for every possible outcome. For this reason, you should use language that covers the most likely situations and be clear about your wishes.
The best way to do this is to provide instructions for very specific situations using clear, concise language. Here are a couple of examples:
"If I am in what has been medically determined to be a permanent vegetative state, and subsisting only because of life support, I do not want my life to be prolonged by life support, artificial hydration, feeding, or any other life-sustaining treatment. However, I would like comfort care to ease any potential pain during my final days.”
“If I have suffered severe central nervous system damage and am not expected to recover, I do not want my life to be prolonged via any life-sustaining treatments, including but not limited to artificial hydration, artificial feeding, and life support technology.”
Alternatively, you might say:
“I want my life to be prolonged to the greatest extent possible, without regard to cost, condition, the likelihood or my recovery, or the burdens incurred on others.”
What you dictate in your living will is up to you. Bear in mind that in some cases, doctors may not be able to continue treatment. Cases determined to be medically hopeless are considered a waste of resources and may not be controlled by the tenets of a living will.
You want to be sure you cover all the bases, but what exactly are the bases? It is difficult and troubling to imagine what sorts of situations might be likely to arise at the end of your life. The easiest approach is to download a free living will form for your state and fill in the blanks.
It is important to remember the following when you’re preparing to create your living will:
Make sure you’re familiar with your state’s requirements and documents.
Make sure you file all documents with the proper local authority, if necessary.
Make sure it is notarized.
Make sure it is signed by yourself and the required number of witnesses. Witnesses should not be family members, your doctor, or beneficiaries listed in your last will and testament.
Make multiple copies of the document and give copies to your family members and doctor. That way, anyone who treats you knows you have one.
The doctor treating you is legally bound to carry out the guidelines outlined in your will.
A living will is not attached to your last will and testament. Your last will and testament only applies after you die.
It’s important to talk with your parents, spouse, and other people to whom you are close to about having their own living will. Doing so will ensure that, in the event of a tragedy, a procedure and understanding will already be in place as long as the document was properly executed and given to the proper people.
These conversations can be difficult. Here are a few quick ways to sensitively raise the issue of living wills.
“If something happens to you, I want to make sure I honor your wishes. Do you have a living will?” If they say that they do not have a living will, ask if they’ve considered creating one. Be prepared to explain the importance of the document.
“If you’re ever on life support, I’m not sure I would be in the right frame of mind to make medical decisions on your behalf that would honor your wishes. I think it would give us both some relief if you documented your preferences in a living will.”
Living wills can be difficult documents to write from an emotional standpoint. They force you to confront a possibility none of us want to happen. However, it is vital for you and your loved ones that you establish a living will. Should something tragic happen to you, your loved ones will already have enough to deal with. A living will ensures they won’t also have to figure out what medical care you would or would not want.
Our team at FormSwift created a ranking of the most expensive states to die in, in the United States. We separated these costs into three scenarios - dying at home, dying in a hospital, and dying in a nursing facility. We created our ranking by evenly weighting the following costs associated with dying: average living wage for one adult, average funeral cost, average medical costs, and average final year costs associated with dying at home, in a hospital, and in a nursing facility.
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