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A living will is a legal document describing what steps you want medical care providers to take — or not take — in certain medical situations in which you are unable to communicate. Similar to a traditional will, a living will ensures people follow your wishes if you are incapacitated.
What is the purpose of a living will?
A living will helps people decide whether to provide medical treatments that, if not administered, could result in your death. The document also conveys your wishes about medical decisions that may prolong your life for a limited period of time.
People often write living wills after being diagnosed with a terminal illness, but it’s also important to have one in place in case you suddenly become incapacitated. Living wills are meant to speak for you when you cannot speak for yourself.
Living will versus will
There are three key differences between a living will and a last will and testament:
A last will and testament covers more than medical care. Wills describe how certain assets should be distributed upon a person’s death, as well as guardianship of children, administration of charitable donations and more. Living wills focus on medical care.
You can have someone else manage your last will and testament. When you write a last will and testament, typically you’ll name an executor, who is the person you want to manage the distribution of your assets when you die. That person can be a different person than the health care proxy you might designate in a living will (one person might be more skilled at medical decisions than financial decisions, for example).
Wills may have to go through probate. Probate is a court process necessary to determine whether a last will and testament is valid and, if necessary, determine how to distribute a deceased person’s assets.
How to write a living will
There are five steps to writing a living will.
1. Start with the required elements.
A living will should include many of the things you need for a last will and testament. Although requirements for living wills vary by state law, they should generally include:
Your legal name and the date the living will was drafted.
A statement that you are mentally competent enough to draft a living will.
Health care instructions (see “advance directives” below).
The name of your health care proxy.
A signed statement from two witnesses.
Your signature.
2. Add advance directives.
Living wills typically have advance directives, which address extreme medical situations such as dementia, comas and strokes, and they can cite your preferences for specific medical treatments. A living will commonly outlines a person’s wishes for:
Resuscitation efforts in the event of incapacitation.
Life-prolonging procedures if survival is unlikely.
Care you do or don’t want, such as:
Mechanical ventilation.
Feeding tubes.
Kidney (dialysis) machines.
Organ donation.
Religious or philosophical considerations you would like observed in these situations.
3. Use precise language to avoid confusion.
A living will’s directions could be too narrow to be useful in common medical situations if it contains dated language. For example, a clause citing an "incurable or irreversible condition with no reasonable expectation of recovery" may spark an argument about medical probabilities today or in the future. Similarly, a medical recovery could occur, but perhaps not a complete recovery.
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4. Understand your state’s requirements.
States have a say in what a living will can cover. In New York, for example, living wills are not addressed by any legal statute, though the state's highest court has upheld them as long as the documents provide "clear and convincing" evidence of the person's wishes. You usually cannot, however, use a living will in New York to name a health care proxy who can make medical decisions for you if you're incapacitated.
Many states have additional requirements for decisions about life-sustaining medical treatments. For example, a second physician may have to confirm your doctor's assessment that you are incapable of making treatment decisions. These rules may not change how you prepare your living will, but they're good to know during the drafting process.
5. Consider a medical power of attorney.
You can give decision-making authority to a person you trust via a power of attorney. This will allow that person to make medical decisions for you if you are unable to do so.
This can be particularly important due to the limitations that some states place on living wills, and because your medical situation might involve scenarios not covered in your living will or other directives.
The health care proxy can use your living will as a guide to make immediate decisions, in consultation with your doctors, based on your medical situation.
Typically, you can revoke a living will's provisions and the medical power of attorney if you regain the ability to make decisions about your treatment.
Do you need an attorney to make a living will?
An attorney can help you write a living will and other medical directives, but you also can create a legally binding health care document with estate planning software. Your state’s bar association should have an online directory of attorneys in your area.
Kay Bell is a former contributing writer at NerdWallet.
