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Living Wills and Advance Directives

An advance directive is a type of estate planning document that can be used to provide instructions for your future medical care. A living will is a type of advance directive that contains specific instructions on your preferred medical treatment at the time of mental or physical incapacity. For example, a person suffering from dementia or an individual who is under a coma may be treated in accordance with the terms of a living will that they left behind before their health deteriorated to the point of incapacity.

As living wills quite literally concern matters of life and death, it is prudent to reflect deeply before making any swift decisions. Oftentimes, the counsel of loved ones, friends, and family may be helpful in allowing you to make choices about how medical care should be administered towards the end of your life.

Yet for others, living wills are a private matter that they would prefer to contemplate on their own. Low-cost do-it-yourself (D.I.Y.) estate planning is possible in some simple cases and can be found on our companion site, Estate law varies from state to state, and estate planning situations can get complicated quickly. You may also want to consult with an estate planning attorney in your area for advice on your individual situation.

If you are thinking about wills in the context of estate planning, it is easy to confuse a living will with a last will and testament (or simply will, for short). Similar to a trust, a will (not living will) serves the testamentary function of allowing a person to provide for the disposition of their estate (properties and assets) after their death. On the other hand, when people use the term “living will,” they are likely referring to a document that provides for their medical treatment preferences while they are still alive but incapable of making decisions for themselves.

Below are some examples of how various states legally provide for living wills. Generally, living wills should be witnessed by two people and/or notarized to be valid:

  • In California, Probate Code §§4700 and 4701 provide information for Advance Health Care Directive Forms. A sample of the form is also available.
  • The Texas Health and Safety Code recognizes directives under §§166.031 to 166.053.
  • The Life-Prolonging Procedure Act of Florida is recognized under the Civil Rights statutes §§765.301 to 765.310
  • Ohio’s Uniform Rights of Terminally Ill Act, Ohio Code §§2133.01 to 2133.15 contemplate comfort care for patients.
  • New York’s Public Health Law §2965 discusses decision-making by adults with capacity.
  • Arizona’s Public Health and Safety Code § 36-3201 provides for living wills, and a fillable form is available for submission into state registry.

Advance Directives and Powers of Attorney

Legal instruments that are relevant to estate planning, but which deal more directly with events during your lifetime rather than death, include medical directives and powers of attorney. While medical directives can allow you to leave instructions relating to healthcare treatment during incapacity, powers of attorney can likewise permit you to delegate personal rights to third parties who can act on your behalf in dire times:

  • Advance Healthcare Directive: Living wills, when combined with medical powers of attorney, form the basis of advance healthcare directives. Most succinctly, you can leave directions on who should “pull the plug,” whether you should be resuscitated, and more. For example, California has an Advance Health Care Directive Registry and a special form you can fill out relating to the same. Arizona provides a similar registry.
  • Durable Power of Attorney (POA): During your lifetime, this is the most comprehensive set of rights and responsibilities that you can delegate to a trusted third party on your behalf. A Durable POA allows someone to “jump in your shoes” and execute legal documents as if you were the one signing. For instance, this can come in handy when you are planning to go on a long and far away trip and need someone to tend to your affairs (e.g. bank transactions, checks, contracts, purchases) while you are gone.
  • Non-Durable Power of Attorney: This form of POA is more limited in that you can explicitly control the duration and legal extent to which a third party can act on your behalf. A non-durable POA may be extinguished by operation of law if you become incapacitated. All POAs, irrespective of whether they are durable or not, are destroyed at the time of the delegating-party’s death.

Frequently Asked Questions

  • What happens if I don’t have an advance directive or living will, and I lose conscious capacity to make my own healthcare and treatment decisions? Default provisions of your state’s law regarding standard medical practices will apply. For example in the context of hospitalization, in most cases, doctors may be required to prolong a patient’s life as long as possible notwithstanding his or her vegetative state or desire not to be resuscitated. Other times and depending on the jurisdiction, immediate family members, such as spouses in California, may be given power to make decisions of this caliber for the patient.
  • What are some examples of instructions I can include in my living will? While the law does not specifically provide for the exact verbiage that should be used in your living will, you can direct that treatment be given to relieve your pain and maximize your comfort if your health is critical. You can also specify to forego treatments that may otherwise prolong your life, including the use of breathing tubes or other machines designed to substitute for organs like the heart and kidneys which perform vital tasks to keep you alive.
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