A living will is an advance directive that protects your right to accept, refuse, or cease medical treatment even after you’ve been certified as incapacitated by at least one physician. A living will acts as your medical voice when life-and-death situations arise. It can speak your preferences about your healthcare wants or non-wants, removing this burden of decision-making from your family. By the end of this article, you’ll have a better understanding of how to use a living well to protect yourself or your loved one.
If you don’t yet have a living will, then you’re not alone. About 70% of Americans are without advanced care plans and directives, such as living wills, for their families, according to the Centers for Disease Control and Prevention.
More than 70 million Americans aged 50 and older—four out of five older adults—suffer from at least one chronic condition, according to AARP research. With these chronic conditions, older adults are also likely to experience some type of disability before death. Without question, you (and your family) will face health-related decision-making in these situations. Creating and maintaining a living will prove helpful in expressing your wishes, should a terminal illness affect your communication or cognitive abilities.
Keep in mind that the creation of a living will is a personal choice. If you decide against its creation, you’ll still receive the medical assistance you’ll need in a medical emergency. But, because of The Patient Self-Determination Act of 1990 (PSDA)—a federal law ensuring the communication and protection of patient’s health care rights and decisions—hospitals will generally make an inquiry into whether you have one.
The Centers for Disease Control and Prevention also provides a few reasons why most Americans don’t have a living will:
- Lack of Awareness
- Cultural Differences
Unfortunately, when you don’t have a living will, a few things can happen:
- Your state government could become involved in your care and treatment decision-making process.
- Your state could also appoint your spouse, adult child, or another relative—or friend, guardian, or doctor—(someone you didn’t personally designate) to make these important decisions on your behalf, usually with medical guidance.
- Your state or relative’s health care decisions could possibly go against your religious and personal beliefs and wishes.
- Your other family members could disagree with your appointed relative’s decisions—and possibly battle things out in court.
The good news is that you can decide—in advance while competent—your future care choices, in alignment with your values and wishes—and prevent others from making decisions against them. You can minimize familial discord and stress during times of trauma, illness, and death.
All of it starts with the creation of your living will.
A living will is a type of advance directive, also known as an advance health care directive (or advance medical directive). Advance directives are signed, legal documents completed beforehand with one specific purpose: to educate your family and healthcare providers on your individual wishes and preferences for future emergency care and assistance—when you’re unable to engage in oral communication.
Let’s take a closer look at the definition of a living will.
Which medical decisions does it cover?
When you create a living will, you make a declaration regarding important medical decisions. Your wishes provide treatment guidance to your family, caregivers, hospital, and medical professionals. State regulations determine inclusions and exclusions for a living will. But, it usually covers your choices surrounding the following treatment areas:
- Blood transfusions
- Cardiopulmonary resuscitation (CPR)
- Cardiopulmonary bypass pump
- Comfort care
- Mechanical ventilation
- Medication treatment
- Nutrition and hydration tube feeding
- Organ and body donation
- Pain relief and management
Your choices provide relevant information for determining whether to obtain life-sustaining treatment to prolong your life in some cases and whether to withhold or withdraw treatments in others. For this reason, you might find it helpful to discuss not only medical conditions and treatment options with your primary care doctor but also your care goals and living will desires.
A will vs. a living will
Before moving forward, please note that a will and a living will are two different things. A will is also known as a last will and testament or a standard will. A living will, in contrast, is also known as a directive to physicians, an advance health care directive, or an advance directive.
Though both are legal documents requiring witnesses, they serve different purposes. The last will and testament differs from a living will in the following ways.
Unlike a living will, the last will and testament details your preferences regarding asset distribution when you pass away. When you create this type of will, you determine who will get what, how they will get it, and when they will get it. You can also appoint an executor to oversee your asset management when drafting it.
When it becomes effective is another way the last will differs from the living will. A living will takes effect when you’re alive. The last will, in contrast, can only take effect when you die.
To sum things up on the differences between a will and a living will:
- You use a last will and testament when you want your wishes and preferences for your asset distribution honored by your family and the court.
- You use a living will, on the other hand, when you want your wishes and preferences for emergency and end-of-life decisions respected by your family and health care providers.
Who can make a living will?
In most states, any non-pregnant individual 18 years and older can make a living will. But, in all states, when executing a will, the principal (or you, since it’ll be your living will) must also be competent and of a sound mind. What this means is:
- You must know you make a living will.
- You must know why you’re making a living will—and understand its terms.
- You must have the ability to communicate your wishes—in writing, in most states.
- You must do so voluntarily.
The presence of state-required, disinterested witnesses and/or notaries and your required signature makes it a legally binding living will. With a few exceptions, generally, your created living will remains valid until you pass away. At any time, though, while you’re of sound mind, you can revoke, cancel, amend, or update your expressed wishes—all in writing.
How to create a living will
A living will allows you to communicate your wishes for specific medical crisis situations. This could include any medical emergency, from terminal illness to persistent comatose and vegetative states to even death.
A living will is part of this planning process. And, you can create an enforceable one — with your detailed wishes — by:
- Consult an elder law, wills and probate, or estate planning attorney to draft up and prepare your living will document. You might find the following websites helpful: National Academy of Elder Law Attorneys, National Association of Estate Planners & Councils, American Association of Trust, Estate, and Elder Law Attorneys, and The American College of Trust and Estate Counsel. The average cost of an attorney for a living will creation ranges from $500 to $2000.
- Completing your state’s living will, or advance directive, form. On the National Hospice and Palliative Care Organization’s website, for instance, for free, you can download (with instructions) and complete your state’s advance directive form.
- Another Do-It-Yourself (DIY) living will resource is Five Wishes, a living will created by Aging with Dignity. For $5, you can receive a Five Wishes document to complete and sign. (Note: Five Wishes meets advance directive requirements in 42 of 50 states and the District of Columbia. If the document doesn’t meet the requirements of your home state, you must also fill out your state’s advance directive form for legal purposes.)
What makes your living will valid varies by state. Most states, though, require the presence of one or two witnesses (you determine who can witness your advance directive in accordance with your state’s rules) and/or a notary public. If you’re in New York, for instance, you’ll need two witnesses to your living will signing. If you’re in Arizona, on the other hand, you’ll only need one witness or notary public.
Some states, like Alaska and New Mexico, don’t require witnesses or notaries for validity. So, further research on the formalities of your state will prove beneficial.
Questions to consider
Thinking about your future health care wishes helps you evaluate the best medical treatment and care options for your life in difficult situations. Here are some questions to ask yourself:
- What kind of quality of life do I want?
- What specific medical care procedures and choices do I want to be made?
- What are my life support wishes?
- What type of care do I want to receive?
- What are my worries and concerns?
To help you think through these things, here is a list of 9 starter questions to ask yourself when writing a living will.
- Are you suffering from a medical condition right now? What are your treatment options?
- What spiritual, religious, moral, and cultural beliefs should your doctor and other medical personnel know about when caring for you?
- Should you become terminally ill, what medical treatments would you prefer? What treatments should your attending physician withhold?
- What medicine options interest you for severe pain? Are you interested in other complementary and alternative pain management options, such as guided imagery, and cognitive, mental or physical therapy?
- What level of care do you want to receive if seriously ill with an end-stage medical condition? Where do you want to receive this care—an assisted living facility, a hospital, a nursing home, your home, or a relative’s home?
- Do you want aggressive medical care and treatment (surgeries, for example) and life-sustaining treatments (CPR, mechanical ventilation, artificial nutrition, and hydration, for example), for diseases or conditions with no hope of recovery? If so, at what point should health care professionals end your curative treatments?
- If you were dying from illness or injury, would you want treatments to prolong your death? Or, would you want to die a natural death?
- Have you designated a health care proxy or agent through a medical power of attorney? Will you do so if you haven’t already?
- When you pass away, do you want a funeral cremation or burial service? Would you like your organs donated for transplant and study purposes?
Your answers to these questions will help your family and health care providers know the things of importance to you if you become sick and injured with a loss of communication skills.
Remember, this is not an exhaustive list of questions. It’s just a starting point for your consideration, so you might also find it helpful to use the American Bar Association’s Toolkit for Health Care Advance Planning to help you further identify and clarify your instructions.
Storage and revocations
Living will storage
After creating your living will, you should keep it in a safe but accessible place at home. The National Hospice and Palliative Care Organization provides three factors to consider when identifying a storage area for your original and copies:
- Portability – meaning it can travel around with you.
- Availability – meaning you (or a trusted source) can access it at all times.
- Safety – meaning safety from disastrous conditions, such as fires and floods.
You should also take it a step further. Inform your family, doctor, health care agent or proxy, attorney, hospital, nursing home, assisted living facility, and other trusted sources about your living will and its storage location, so they can find it when needed. You can also provide them with copies of your living will for their own personal storing, if you choose.
If you’re also interested in an electronic option, then the US Living Will Registry stores advance directives with immediate access to hospital and health care providers.
Living will revocations
As noted above, you can cancel or change your living will at any time while competent and able to communicate. Specifically, though, you might consider revocations when:
- You experience health changes.
- You get married or divorced.
- You move from the state of your living will creation.
- You become familiar with legal changes and/or medical technological innovations.
- You change your beliefs, viewpoints, and/or wishes.
Each state and the District of Columbia has its own rules about changing or revoking your living will. Generally, though, you can make these changes or cancellations by doing the following:
- Informing your doctor and others, orally or in writing, about your cancellation.
- Tearing up and getting rid of it.
- Signing a written revocation form.
- Preparing or drafting up a new living will—according to the laws of your state.
Please beware: Informing your doctor is important. Your cancellation won’t become effective until your physician knows and makes a note about it in your medical file.
Discussing your options with loved ones
After you’ve created your living will, choose a good time and place—then discuss your decisions with your family. You want them to fulfill the medical wishes outlined in your living will declaration—when you’re legally incapacitated—as opposed to contesting them. Communicating your chosen preferences to your loved ones may result in them carrying out your choices, as declared.
To initiate the conversation, consider the following ice-breaker, as recommended by The Conversation Project, a public campaign promoting end-of-life care discussions, and The Institute for Healthcare Improvement, a nonprofit organization working to improve health and healthcare, in their Conversation Starter Kit:
“I just answered some questions about how I want the end of my life to be. I want you to see my answers. And I’m wondering what your answers would be.”
From there, you can explain the decisions you made and why they’re important to you. If you don’t cover everything in your living will during the first conversation, don’t fret. “Having the conversation isn’t just a one-time thing,” notes The Conversation Project and The Institute for Healthcare Improvement in their Starter Kit. “It’s the first in a series of conversations over time.”
By having these conversations ahead of time, you’ll provide your family with the clarity and comfort they’ll need to honor your final desires when an unexpected or challenging situation occurs.
Do not resuscitate orders (DNR)
Generally, advance directives and living will stipulations don’t apply to Emergency Medical Technicians (EMTs) and Paramedics. When called, they’re responsible for providing emergency care and will perform cardiopulmonary resuscitation (CPR), or advanced cardiovascular life support (ACLS), in cardiac arrest and respiratory situations—unless you’re a patient with a do-not-resuscitate (or DNR) order.
A do-not-resuscitate order—also known as a no-code or allow natural death order—is a legal, medical form written, from a doctor to other health care professionals, with specific instructions against performing CPR or ACLS on a sick patient when the individual’s heart has stopped beating, and the individual has stopped breathing. Sick patients with DNR orders typically include those with:
- Terminal illnesses and infections
- Serious and end-stage health conditions and problems
- Surgical emergencies
Usually, DNR jewelry—such as a bracelet, necklace, medallion—or a medical ID identifies DNR patients to medical personnel. This order isn’t necessary for all individuals. The American Medical Association provides two DNR guidelines for appropriate use:
- The patient (or the patient’s family, health care proxy, or state-appointed guardian) must express non-resuscitation preferences—to a doctor, physician assistant, certified nurse practitioner or specialist.
- The patient’s physician must determine whether resuscitation methods would be futile on the patient.
Upon meeting these guidelines, if interested, you can get a DNR form from your doctor’s office or hospital. You also have the option of completing your state’s standard do-not-resuscitate form and presenting it to your physician for the required signature. If you’re in located in New York, for instance, you’d complete the State of New York Department of Health Nonhospital Order Not to Resuscitate one-page form, which requires your physician’s signature for validation.
Outside of New York? You can find your state’s form online by searching for “DNR form + your state” (example: DNR form New Jersey). Or, you can contact your state’s health department via telephone.
Like a living will, you must sign your DNR order in the presence of witnesses in some states. Another similarity is that you can always revoke the wishes of your DNR order. Rules and regulations vary by state, but generally, a do-not-resuscitate order doesn’t expire. In some states, though, your doctor must review—and/or renew—it every 90 days.
Pros and cons of a living will
Your living will document will provide future medical treatment instructions to your family and health care professionals. But, they also come with a few drawbacks you should be aware of.
Let’s discuss the disadvantages of a living will.
The cons of a living will
- Ambiguity and Misinterpretation. If you draft up your living will too vaguely, then your family members, caregivers, and doctors may disagree on exactly your wants and wishes. If you complete it with specifics, clearly outlining the medical care you’d want to receive and when you want to receive it, then you’d leave no room for misinterpretation.
- Inaccessibility. It’s important to store your living will in a safe but accessible location. If it’s not accessible to others when needed, then you might not receive treatment in accordance with your wishes.
- Scope and Portability Limitations. You have no ability to anticipate every possible trauma, illness, or injury, so it’ll be hard to state specific preferences for them. In terms of portability, living will rules vary from state to state. So, the living will, or advance directive, honored in your home state might not be honored in another.
Aside from providing from medical treatment instructions, you should also consider the benefits of a living will. Let’s look at a few.
The pros of a living will
- Control. You’ll have no need for your state or state-appointed guardian to make medical decisions on your behalf. Through your living will, you’ll voice your desires on the treatment you wish to accept or refuse. Should these wishes change over time, you can always update your living will to reflect them.
- Open Communication. With a living will, you’ll be able to openly communicate your wishes. In return, your family members and caregivers will be in a better position to carry them out as opposed to guessing and disagreeing on what’s best for you.
- Better Treatment and Care. People with completed living wills received better treatment and care than those without, according to the results of the New England Journal of Medicine’s Advance Directives and Outcomes study.
A medical power of attorney
Given there are concerns, such as those listed above, about creating living wills, some opt to consider living will alternatives. The medical power of attorney document is a viable alternative for individuals and their families.
So, what’s the difference between a living will and a medical power of attorney? Both a living will and the medical power of attorney documents are advance directives. Both are legally binding when prepared according to the rules and regulations of your home state. But, where they differ is in their scope.
With a living will document, you retain control of your medical decision-making. When you can no longer communicate with your family and health care providers, your living will legal document expresses your preferences for care and treatment.
Under a medical power of attorney (POA), or durable power of attorney for health care, document, you transfer some of your control to a family member or caregiver—or another trusted party—(who is also known as a health care agent, health care proxy, or health care surrogate), according to the health care proxy rules of your state.
By creating a POA, you’ll give your designated person the ability to make medical decisions on your behalf when you’re unable to do so yourself. In the event your chosen health care agent or proxy is unavailable to act in your place when needed, you might find it helpful to also add an alternative agent to your POA form.
If you choose to complete a medical power of attorney form, you should designate someone who’ll understand, accept, and carry out your specified medical decisions and wishes. Factors to consider when choosing your health care agent include:
- Years Known
- Personality Type
- Decision-Making Ability
- Willingness to carry out your particular wishes
Note: Some consider a health care proxy or agent—appointed under a durable power of attorney—a living will alternative. Others, however, consider it a living will complement, advocating the creation of both documents.
Living will FAQs
1. Do I need a living will?
You don’t legally need a living to receive the future medical care and treatment you might need, should an illness or trauma leave you physically or mentally incapacitated. However, a living will prove beneficial in cases where:
- You want to voice your desires during challenging healthcare situations while you still have your decision-making abilities—freeing your family from making these difficult decisions for you in the future.
- You’re strongly for or against certain procedural and treatment options.
2. How much does a living will cost?
It depends on how you choose to create your living will. If you hire an attorney to draft your living will declaration, then your costs can range anywhere from $500-$2000, depending on your marital status and complexities.
If you’re considering a do-it-yourself resource, you can make your living will for free (using the National Hospice and Palliative Care Organization’s state-specific form for your state) or for a price of $5.00 if you purchase the Five Wishes document.
Please note you’ll likely have notary fees in states requiring notarizations for validation.
3. What makes a living will a legal document?
State laws regulate the legality of living wills. Generally, you must be a non-pregnant 18 years or older citizen with your decision-making and communicative abilities intact. Depending on your location, you must also finalize and sign the living will in the presence of at least one authorized witness and/or a notary.
For more information, you can check out your state’s living will requirements via its department of health website online. You can also find out more by contacting an elder law, estate planning, or a will and probate attorney in your state.
4. Is there a difference between a living will and a living trust?
Yes, there’s a difference between a living will and a living trust. A living will, a type of advance directive, allows you to declare your wishes and preferences for medical procedures and care should you become incapacitated as a result of infirmity, illness, or trauma.
A living trust, a type of inter vivos trust, in contrast, allows you to safeguard your assets in a trust account while you’re alive and transfer and distribute them to your beneficiaries should you become incapacitated.
5. Who can witness a living will signing?
Usually, disinterested parties—parties with no interests or benefits—must witness a living will signing. If you designate a health care proxy or agent, for instance, your chosen person can’t witness and sign your living will document—because of an interest in the living will.
6. Can doctors refuse medical wishes outlined in a living will?
Yes, while doctors must respect your medical wishes, according to the American Bar Association, they can refuse compliance if your wishes raise conscience issues for them. They can also refuse compliance if they consider your wishes medically inappropriate. If they refuse your living will, though, they’re obligated to assist you with transferring your care to a doctor who’ll comply.