Living Will

James Parker
April 17, 2022

What Is a Living Will?

A living will is a legal document that expresses the wishes or preferences of an individual with regard to their healthcare. This document can be known synonymously as a “living will,” a “health care directive,” or an “advanced directive.” In all cases it is a legally binding document directing family members and health care representatives on how the individual in question would like their end of life treatment to be. In some states a living will may also be included in a document granting durable power of attorney.

A living will is not actually a last will and testament. Most states recognize the authority of a living will while the individual is alive, but the document is meaningless upon the individual’s death. A living will will most often trigger once the author is no longer able to communicate their decisions about medical care. This could be because of a physical inability to communicate or merely a mental incapacity to communicate clearly.

Living wills grant clarity to family members and can cover decisions about life-support, pain treatments, or any other wishes to be honored once the author has reached the end of their life.

Key Takeaways

  • A living will is a legal document that states the preferences of an individual for their end of life care.
  • Living wills can give care instructions for an individual’s preferred methods and circumstances of pain relief, resuscitation, or hospice care.
  • Individuals without a living will or durable power of attorney run the risk of their next of kin making decisions that are not in line with their preferred methods of care.
  • If you want to establish a living will or a durable power of attorney, an experienced Trusts & Estates attorney may be able to improve the outcome of your case by utilizing experience and expert knowledge.

Living Wills, Trusts, and Estates

A living will is one way to explicitly communicate an individual’s wishes regarding their healthcare after death. Some decisions that may be covered by a living will include:

  • Whether to be admitted to a hospice center
  • Whether to pass away in a hospital or at home
  • How long to be kept on life support
  • When to administer care to ease pain and suffering, also known as palliative care
  • Whether healthcare professionals should administer CPR

Many decisions, such as the decision not to resuscitate, can be difficult decisions for family members to make on the individual’s behalf. In most cases without a living will, all medical decisions must be made by the family.

A living will does not need to be complex. Exact requirements vary by state but in general individuals are free to go into as much or as little detail as they would like with regards to how their care should be handled. Additionally, the individual may specify when they would or would not like life-saving care. For example, the individual may state that they would like to receive CPR except in the case of a stroke. This specific scenario may not be common knowledge among family members or may not be remembered in the moment, but it can be recorded in a living will and honored should the situation arise.

Living wills must meet certain state requirements in order to be valid. This may include being notarized and usually includes being witnessed by a certain number of people. Living wills are fully revocable, as long as they are revoked before the individual loses the ability to communicate that they would like their living will revoked.

Even in the event where a living will is active, doctors may still ask the individual their preferences if possible. Living wills are seen as a fallback or last resort option when it is no longer possible to consider the in-the-moment feelings of the individual.

An alternative or supplement to a living will is the establishment of a durable power of attorney. An individual appointed as power of attorney will act as an agent of the individual in order to proactively carry out their wishes as they see fit. 

Bottom Line

If you want to secure your medical preferences and ensure that your end of life wishes are honored, you will need a living will or, even better, a durable power of attorney. To establish either of these safeguards, you will need a trusts & estates attorney.

An experienced trusts & estates attorney can help you craft an end of life plan that perfectly fits your needs. Whether they are helping you cover specific scenarios and how you want them handled, or crafting a tightly controlled medical power of attorney to allow a close family member or friend to advocate on your behalf, a trusts & estates attorney can ensure that your wishes are enshrined in the most efficient way possible.

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