What Is a Living Will?

Estate Planning, Investing
living will

A living will sounds very similar to a last will and testament, but it serves a different purpose. Your living will puts into writing what steps you want your doctors to take — or not take — in certain medical situations in which you are unable to communicate.

A living will generally comes into play when a decision must be made about treatments that, if not administered, could result in your death. The document also addresses medical decisions that may prolong your life for a limited period of time.

Because of these factors, living wills typically address extreme medical situations, such as dementia, comas and strokes, and cite your preferences regarding specific medical treatments, such as resuscitation efforts and the use of mechanical ventilation or feeding tubes. They may also cite religious or philosophical considerations that you would like observed in these situations.

Living wills are meant to speak for you when you cannot, so when you regain the ability to speak or communicate, they naturally become irrelevant.

Preparing your living will

Legal experts says individuals should take care in drafting a living will, especially in light of modern medical advances. The document’s directions could be too narrow to be useful in common medical situations if it contains dated language.

A clause citing, for example, an “incurable or irreversible condition with no reasonable expectation of recovery” may be a mismatch with medical probabilities today or in the future. A person could face a small chance of recovery, notes the American Bar Association, but a nonexistent chance of recovery is unlikely. Similarly, a medical recovery could occur, but not to the same wellness level that the person enjoyed before hospitalization.

Also, some commonly used clauses in living wills could prevent medical personnel from providing assisted breathing measures that are used for dealing with chronic obstructive pulmonary disease, the association warns.

State 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 cannot, however, use a living will in New York to name a health care agent, someone 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.

Other health care directives

Some states refer to a living will as a health care directive, but it’s not the only type of directive. While your living will can contain wishes regarding specific medical situations, you also might want to consider making certain wishes even clearer through additional health care directives.

A do not resuscitate order tells medical personnel not to perform cardiopulmonary resuscitation if you go into cardiac arrest. You can specify that you do not want hospital personnel to perform such measures and that you do not want such efforts to be made in situations outside a medical facility.

An organ donation form allows medical personnel to use your organs upon your death to help others. Some states allow residents to authorize donations on their driver’s licenses. However, you can also include your wish to donate along with your other official papers regarding medical care.

To change the wishes in your directive, you can create a new one in the same way as the original. This will invalidate all previous directives.

Medical power of attorney

The naming of a health care proxy is another key medical directive you may specify. This is particularly important due to the limitations placed on living wills by some states, and the possibility that your medical situation might involve scenarios not covered in your living will or other directives.

You can give health care 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.

That agent can use your living will as a guide and will be able to make immediate judgments, in consultation with your doctors, based on your medical situation.

Naturally, a living will’s provisions and the medical power of attorney will be rescinded if you regain the ability to make decisions about your treatment.

Do you need an attorney to make a living will?

An attorney will be happy to help you craft a living will and other medical directives, but you also can create a legally binding health care document by using reputable estate planning software. You may also seek an instructional book or printed form for this purpose, though it’s wise to create an electronic backup of any drafts you create.

While reviewing any estate planning software, including that for living wills and medical directives, look for a program that gives clear instructions, discusses your full range of options, explains how to make the document legal and tells you when your situation may warrant seeing an attorney.

If you prefer to consult a lawyer because your situation is more complicated or you want the peace of mind of using a professional, your state bar association should have an online directory to help you find an attorney in your area.

No matter which options you choose in this process, the most critical steps are to think about how you want to be treated in extreme medical cases and to put your wishes in writing — in a document that a loved one or doctor is aware of — before an emergency arises. This will not only make sure your wishes are met, but also save your loved ones from having to make difficult decisions in an already painful situation. 

To learn more on issues like these, see NerdWallet’s estate planning basics.

Kay Bell is a contributing writer at NerdWallet, a personal finance website.