One of the benefits of the federal-state split of authority is that it allows individual states to tailor laws to their own needs. However, the downside of this method is on the flip side where advice given regarding legal advice doesn’t travel well across state lines.
One very important topic that has variance between the states is the concept of a living will. A living will also be known by other names including an “advanced health care directive,” which is a document that preserves the wishes of the author in a legally binding way, even if they are unable to advocate for themselves.
A living will cover the basics of how the author would like medical treatment to reduce pain (palliative care) to be administered, whether or not the author consents to a blood transfusion, or even whether or not to resuscitate. A living will can be a vital resource in preserving the rights of the author when they are unconscious, mentally unequipped to consider their best interests, or suffering from any other form of incapacitation.
A good example of the many different ways that state laws differ in their treatment of a living will is how a state recognizes a living will as valid. As with many legal documents, before a living will become active, it must first be confirmed to be authentic and valid.
Some states, like Alaska, do not require any witnesses to validate a living will but do require witnesses for a “health care proxy,” which appoints an individual to make general medical decisions on the author’s behalf. Other states require a certain number of witnesses or a notary, like in Mississippi.
The full list of states that do not require witnesses for a living will are:
Only Arizona and Utah allow for a living will to be created using one witness. The states that require two witnesses or a public notary are:
Some states, such as Florida, require that at least one of the witnesses not be a blood relative or spouse of the author.
In addition to witnessing or notarizing a living will, some states, like Nevada, allow people to submit their living will to a database that is maintained by the state. Other states with these “living will lockbox” programs are:
These states may require certain forms to be submitted along with the living will to submit it to the registry.
Finally, two states do not formally recognize living wills: Massachusetts and Michigan. Massachusetts allows for health care proxies, which require two witnesses, but the state does not acknowledge or recognize living wills in any official capacity. This means that it is up to the physicians or individual in charge of the author t choose whether to heed the wishes in a living will.
Michigan law simply lacks any mention of a living will. While someone living in Michigan could create a singed, witnessed, and notarized document entitled “living will” and listing the author’s intent for their healthcare treatment if they are incapacitated, the state has no formal requirements for a living will and therefore holds no format as more or less legitimate.
If you are looking to begin your estate planning journey, create a living will, or consult on whether a health care proxy would be good for you, you need an experienced trusts & estates attorney. A trusts & estates attorney can consult with you about the best options to create an estate plan and execute them in a way that makes them resistant to challenge from probate courts and specifically tailored to your needs. The best place to find a trusts & estates attorney is at Attorney at Law.
At AAL, our nationwide network of attorneys and law firms allows us to match you with an experienced trusts & estates attorney in your area. Our partners have the resources, legal expertise, and experience necessary to unravel even the most complex trusts & estate cases.
In addition to resources and experience, our partners also excel in client care. Our partners understand that at the core of a trust & estate case is the loss of life and the desire to see the estate distributed to honor the deceased.
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