No one likes to think about death. It’s unpleasant, depressing and often frightening. Honoring a person’s final wishes — especially those unable to speak for themselves — has led to widespread legislation in the United States over the last 50 years.
Living wills emerged in the 1960s as a way to ensure appropriate treatment was provided when a patient was incapacitated. An attorney named Luis Kutner was the first to suggest a living will in 1967 to enable “the rights of dying people to control decisions about their own medical care.”
Bills at the state level followed throughout the 1970s and 1980s. By 1992, all 50 states had passed some kind of legislation on living wills and advance directives.
According to Caring.com’s 2023 Wills and Estate Planning Study, one in four Americans see a greater need for an estate plan in 2023 due to inflation. A living will can be a critical part of estate planning.
A living will can make the right decision easier for loved ones and help families avoid disputes. It can also remove the burden of having to make an end-of-life choice from your loved ones, especially if they are not fully aware of your wishes.
Living wills act like roadmaps with guiding principles, but they can’t predict every scenario. That’s why communication is key. Family members and caregivers should be aware of your preferences whether you have a living will or not.
What Is a Living Will?
A living will explains what end-of-life care you want — or don’t want.
Even though the term “will” is in the name, a living will is very different from a last will and testament, which determines what happens to your estate after you pass away. A living will, on the other hand, specifies what you want to be done if an accident or illness renders you incapacitated and unable to make important medical decisions. It is only used if someone is terminally ill, unconscious or close to death. It does nothing to transfer assets, which is the main purpose of a last will and testament.
Even though the term “will” is in the name, a living will is very different from a last will and testament, which determines what happens to your estate after you pass away. A living will, on the other hand, specifies what you want done if an accident or illness renders you incapacitated and unable to make important medical decisions. It is only used if someone is terminally ill, unconscious or close to death. It does nothing to transfer assets, which is the main purpose of a last will and testament.
Common Situations When Living Wills Are Used
- Coma
- Persistent vegetative state
- Stroke
- Severe brain injury
- Advanced dementia
- Other end-stage conditions
Living wills can be beneficial at any age. Even young people can be severely injured in accidents and left in vegetative states for years if they do not communicate care preferences. At the very least, experts recommend everyone appoint a trusted person to make important medical decisions on their behalf.
Living wills can be beneficial at any age. Even young people can be severely injured in accidents and left in vegetative states for years if they do not communicate care preferences. At the very least, experts recommend everyone appoint a trusted person to make important medical decisions on their behalf.
How Does a Living Will Work?
A living will is one of the many sources of information medical professionals use to determine your medical treatment preferences. A living will is a legal component of an advance medical directive that allows you to dictate your end-of-life medical care.
For it to take effect, several things have to happen.
How a Living Will Works
- A living will must meet the notarization and witness requirements specific to your state to be valid.
- Doctors will prioritize obtaining your personal preferences directly from you before relying on any document, including a living will, to guide your medical treatment decisions.
- A living will becomes effective when medical professionals determine that you can no longer communicate your treatment preferences.
- You can revoke it anytime, allowing for changes in your plan or new information that may affect your preferences.
Creating an Advance Directive
Living wills are usually partnered with a medical power of attorney to create what’s known as an advance directive.
An advance directive can include any of the following:
- A living will
- A “do not resuscitate” form, or DNR
- Medical power of attorney
- Physician orders for life-sustaining treatment (POLST)
Like a living will, the documents and requirements for an advance directive may vary from state to state.
You can contact the American Bar Association, AARP and the National Hospice and Palliative Care Organization for resources on assembling an advance directive.
Be prepared to change or update your advance directive routinely or when there are major changes in your life.
- A New Diagnosis
- Consider updating your directive when diagnosed with a terminal or life-changing medical condition.
- Change in Marital Status
- Update your health care proxy if you marry, divorce, separate or are widowed.
- Every 10 Years
- Your end-of-life beliefs and priorities change as you age. Reviewing your advance directive every decade ensures it is still in line with your wishes.
When To Update Your Advance Directive
Source: Mayo Clinic
Choosing a Medical Power of Attorney
It can be difficult to make choices about future care when you don’t know what the future holds. That’s why a medical power of attorney is important.
A medical power of attorney appoints a person to make critical health care decisions on your behalf if you are unable to do so. This person is called an agent or health care proxy. Your proxy can be a spouse, adult child, relative, friend, religious figure or legal professional.
The person you pick should know how you feel about life-saving treatments and medical care. He or she should be willing to ask questions and advocate on your behalf to your health care team. You should talk with this person before making a final selection to ensure he or she is comfortable with the responsibility. It’s also advisable to designate an alternative health care proxy should your primary choice be unable to act.
You should list a power of attorney as “durable.” Otherwise, your appointed agent won’t be able to make decisions if you become incapacitated.
Power of attorney authority is broad but not absolute. For example, your proxy can no longer make decisions on your behalf If you recover and regain your faculties. While you are still competent, you can always change your proxy or revoke the directive.
A medical power of attorney may not be a good idea if there is no one in your life that you trust to make these decisions for you.
POLSTs & DNRs
A Do-Not-Resuscitate (DNR) form is a medical order that lets health care professionals know if you want life-saving measures performed if you stop breathing. This can include mouth-to-mouth and pressing on the chest, electric shock to restart the heart, breathing tubes and medication.
Physician Orders for Life-Sustaining Treatment (POLST) is a set of medical orders generally used near the end of life or when a person is critically ill. It is like a DNR, but it also includes preferences on other end-of-life care.
While a living will is a legal document, a POLST is a medical order signed by your doctor.
A POLST form does not replace a living will but instead is sometimes added after a person is diagnosed with a serious illness or frailty.
Without a POLST, emergency personnel are required to provide every possible life-saving treatment option. For example, if you are a terminal cancer patient who collapses at home, you may not want paramedics to take you to the hospital, but instead make you comfortable where you are. A POLST can address this.
Your doctor can help you fill out DNR or POLST forms and put them in your medical chart. Doctors and hospitals in all states accept DNRs. Most, but not all, accept POLSTs.
You can always change your mind and request CPR, even if you have a DNR or POLST form on file.
Considerations for Creating a Living Will
Thinking about death is never pleasant, but it’s necessary as you construct a living will. You will ask yourself many questions during this process, but an especially important one to consider is: What makes life worth living to you?
Your answer may be governed by your religious or moral beliefs. It may be influenced by past personal experience.
You need to consider whether you want certain treatments, and if so, under what circumstances. Would you want to be on a ventilator if there were a chance for recovery? What if it kept you alive but unable to communicate with others? How long would you want it to last? Are there only certain situations under which you would consider it?
Devices such as ventilators and feeding tubes can be used to save lives by allowing a body time to heal. At the end of life, however, these measures may do little more than prolong death and raise even more questions about quantity versus quality of life.
Below is a list of potential life-prolonging measures. You can use your living will to specify whether or how long you want to use these measures.
- Artificial Respiration
- A mechanical ventilator takes over breathing for you if you can no longer breathe on your own.
- Feeding Tubes
- These supply nutrients to your body through intravenous fluids or a tube that is inserted directly into your stomach.
- Dialysis
- When your kidneys no longer function properly, this treatment removes waste from your blood while managing your fluid levels.
- Comfort Care
- Also called palliative care, this treatment relieves pain, nausea or other symptoms. It includes several different kinds of interventions to keep you comfortable — including being allowed to pass away at home and receiving pain medication. It also lets you decline invasive tests or treatments.
- Organ and Tissue Donation
- You can use your living will to specify whether you want to be an organ donor. If you wish to donate organs, medical professionals will keep your body on life-sustaining treatment until the procedure is complete.
- Resuscitation (CPR)
- You can specify whether (or under what circumstances) you want to be resuscitated. You can choose to receive cardiopulmonary resuscitation (CPR) or to be resuscitated using a defibrillator or similar device that delivers an electrical shock to restart your heart.
End-of-Life Scenarios To Consider in a Living Will
Source: Mayo Clinic
Your views on these treatments may change throughout your life. Your perspective may shift, depending on your health. For example, views on end-of-life care may be radically different for a healthy 30-year-old than for an 80-year-old person with stage-four cancer. Most documents can later be revoked or amended, provided you still are capable of executing legal documents and not incapacitated.
Talk About Your Decisions and Beliefs
Living will decisions can be emotional, and even painful. Talk to your physician about the medical aspect of your wishes. They can give you the pros and cons of each option along with additional insight into how treatments may affect your current medical conditions.
It’s also vital to talk about end-of-life care with your proxy and loved ones. They should be familiar with your beliefs, morals and attitudes.
If you’re unsure how to broach the subject or what to say, a nonprofit group may be able to help.
An organization called the Conversation Project launched in 2010 to help families initiate these important talks. The nonprofit was created by Ellen Goodman, a Pulitzer Prize-winning writer who served as caretaker to her mother with Alzheimer’s disease for many years.
The Conversation Project offers a starter kit on its website to help people think about the best time, place and way to discuss end-of-life plans with family. It suggests trying icebreakers such as: “I need to think about the future. Will you help me?”
After that, it’s important to communicate early and often. The organization notes that It’s best to have your first conversation about end-of-life care at the kitchen table, not the intensive care unit.
How To Create a Living Will
You can create a living will and advance directive in many ways.
Where To Find Living Will Forms:
- Your doctor’s office or hospital
- Your health department or Council on Aging
- A lawyer
- Online through an estate planning website
The National Institute on Aging notes that most communities in the United States have a Council on Aging or similar senior citizen resource center. Staff at these agencies can help you gather forms and answer questions about your advance directive.
You can find the phone number for your local agency by calling the Eldercare Locator at 800-677-1116 or by visiting the Eldercare Locator website.
Each state’s Bar Association website also usually makes these forms available.
Once you have the forms, you can start writing your living will.
- Step 1: Decide how to write it.
- You can hire an estate planning lawyer. They can help ensure your living will meets all your state’s requirements and can also help write it. There are also forms and templates available online.
- Step 2: Make your end-of-life choices clear.
- You must choose which end-of-life scenarios you want to include in your living will. Review the various situations that could trigger the living will. Templates can help guide you through each case. Remember, if you are working with a lawyer, you’ll need to make your wishes clearly known.
- Step 3: Choose a health care proxy.
- Choose a health care proxy to make sure your wishes are carried out if you can no longer communicate. Pick someone you trust to respect your wishes and handle the responsibility.
- Step 4: Sign it.
- In most states, a living will is invalid until you and two witnesses sign it. But the law varies from state to state. Make sure your living will meets the signing and notary requirements where you live.
- Step 5: Store it where people can find it.
- You can cancel your living will at any time or change it by going through the first four steps again. But always ensure your health care proxy knows where to find your current living will if you become incapacitated.
5 Steps To Writing a Living Will
Do I Need a Lawyer?
Many people create a living will as part of retirement planning, but you don’t need a lawyer to create a living will. Most states require at least one witness on an advance directive form, and some also require a notarized signature. State laws and courts determine the validity of these documents.
You can find living will forms online. These templates are usually comprehensive and allow you to list the names of your physicians along with emergency contact numbers. State laws change often, so make sure the living will form online is current.
According to the American Bar Association, a living will is legally effective but not legally binding. This means medical staff and family members can reinterpret them.
“The question of what is ‘legally effective’ is misleading because even a legally effective document does not automatically carry out your wishes,” the association’s website notes. “The best strategy is to combine talking and documenting.”
If you decide to write your own living will, it will be beneficial for a doctor or legal professional to review it. They can ensure that directives comply with state laws and your intentions are clearly understood. Not all documents are created equal. An attorney can help make sure that your documents are thorough and encompass a wide range of possibilities, with the most current legal verbiage
Make Copies and Update Your Living Will
Once you have completed your living will, give copies of your advance directive to your doctor and health care proxy. There is no guarantee that papers will follow you if you are transferred to a different health care facility. You or your proxy need to double-check and make sure medical staff knows your wishes and have copies of your directive.
You may want to make a list of how many copies are distributed in case your preferences change over time and you revoke your old documents in favor of new forms. It can create a potential problem if a loved one presents an old form to a medical professional that has later been revoked without their knowledge.
Organizations like the National Institute of Health even suggest making a card to carry in your wallet so others know you have an advance directive and where it is located.
It’s beneficial to review your documents every 10 years or if your current medical condition changes.
- Advance Directive
- A legal document that goes into effect only if you are incapacitated and unable to speak for yourself. This could be the result of disease or severe injury. It combines a living will and medical power of attorney.
- Health Care Proxy
- A person who is given authority through a power of attorney to make medical decisions on another person’s behalf. Also called an agent. The agent’s choices will likely not overrule the choices of the individual, provided the individual is mentally capable of making their own decision. You can also nominate more than one agent at a time.
- Living Will
- A document detailing a person’s wishes for medical care if they become incapacitated or reach an end-of-life situation in which life support is needed.
- POLST
- Physician Orders for Life-Sustaining Treatment. A set of medical orders that address key critical care decisions that reflect a patient’s goals of care.
Terminology You Should Know
Can a Living Will Be Broken?
You can change your living will anytime. But two situations can break your living will:
- The authority of your health care proxy.
- If the state deems your living will invalid.
It’s very important to choose a health care proxy who you trust to fulfill your wishes. The proxy has the authority to make decisions that go against the terms of your living will. If it happens when you are incapacitated and cannot communicate, you won’t be able to enforce your original wishes.
Your state can also declare your living will invalid for several reasons. These include not having proper witnesses or the right number of witnesses. Or, there may be previous versions of your living will that counter your current wishes — and may invalidate your current one. Make sure your living will meets all the requirements of the state where you live.
