Key Takeaways
- Creating a living will is a fundamental part of retirement and estate planning.
- It specifies your medical care preferences in end-of-life situations when you can’t make decisions for yourself due to illness or accident.
- You can create a living will through various means, but it’s advisable to have a doctor or lawyer review it to ensure compliance with state laws.
- Regular updates are necessary, especially in the event of major life changes or medical conditions.
What Is a Living Will?
A living will clearly outlines the end-of-life care you want and don’t want. It states your medical care preferences if you can’t make decisions for yourself due to illness or accident.
A living will is separate from a last will and testament, which deals with asset distribution from your estate after death. A living will applies only to end-of-life medical care.
Common Situations Where Living Wills Are Used
- Coma
- Persistent vegetative state
- Stroke
- Severe brain injury
- Advanced dementia
- Other end-stage conditions
Having a living will is important to ensure your medical preferences are honored in case of unexpected accidents or illnesses. Appointing a trustworthy individual to make medical decisions is crucial regardless of age or health status.
Data finds that one in four Americans sees a greater need for an estate plan in 2023.
Creating a living will can prevent family disputes and ease the burden of end-of-life decisions. However, it’s still important to communicate your wishes with loved ones and caregivers even if you have a living will.
How Does a Living Will Work?
Medical professionals use various sources of information to determine your medical treatment preferences, and a living will is one of them. A living will is a 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 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 you can no longer communicate your treatment preferences.
- You can revoke it anytime, allowing for changes in your plans 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 (DNR) form
- A medical power of attorney or health care proxy
- A Physician Order for Life-Sustaining Treatment (POLST)
Source: Mayo Clinic
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 significant changes occur.
- New Diagnosis
- Consider updating your directive when diagnosed with a terminal or life-changing medical condition.
- Change in Marital Status
- If you marry, divorce, separate or are widowed, you should update your health care proxy.
- 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 or needs an update.
When To Update Your Advance Directive
Source: Mayo Clinic
Choosing a Medical Power of Attorney
A medical power of attorney lets you appoint someone to make health care decisions for you if you become unable to do so. Choose someone who understands your values and preferences and discuss the responsibility with them beforehand.
It is important to specify “durable” in the power of attorney document when listing individuals. A nondurable power of attorney becomes invalid if you become incapacitated. As a result, medical powers of attorney are designed to be durable, meaning they only come into effect in the event of your incapacitation.
You can change your proxy or cancel the directive while still able. If you don’t have someone you trust, this may not be the best option.
POLSTs & DNRs
A Do-Not-Resuscitate (DNR) form tells health care providers your preferences for life-saving measures if you experience respiratory failure. This can include mouth-to-mouth and cardiopulmonary resuscitation (CPR), electric shock to restart the heart, breathing tubes and medication.
A Physician Order for Life-Sustaining Treatment (POLST) is a set of medical orders that includes preferences on end-of-life care. It doesn’t replace a living will, but can be added after a critical illness diagnosis. A POLST can communicate your end-of-life wishes to emergency responders so they know not to administer unwanted treatments.
Your doctor can help you fill out these forms and they can be put in your medical chart. 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
Creating a living will involves asking yourself difficult questions, like what makes life worth living for you. Religious or moral beliefs and personal experience may influence your answer.
Consider whether you want certain treatments and under what circumstances. Ventilators and feeding tubes can save lives but may prolong the process of dying. Quantity versus quality of life is an important and very personal decision.
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 directly into your stomach.
- Dialysis
- This treatment removes waste from your blood while managing your fluid levels when your kidneys no longer function.
- Comfort Care
- Also called palliative care, it relieves pain, nausea or other symptoms. It includes several interventions to keep you comfortable, including being allowed to die 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 if Breathing or Heartbeat Stops
- You can specify whether (or under what circumstances) you want to receive CPR or allow the use of a defibrillator or similar device to deliver an electrical shock to restart your heart.
End-of-Life Scenarios To Consider in a Living Will
Source: Mayo Clinic
Your views on end-of-life treatment can change depending on your health and age. Legal documents associated with end-of-life choices can be amended or revoked if you are still capable of communicating your wishes.
Talk About Your Decisions and Beliefs
Talk to your doctor about your medical wishes and how treatments may affect your health. Discuss your end-of-life care preferences with loved ones and a proxy who understands your values.
If you need help starting the conversation, check out The Conversation Project, a nonprofit group that can provide guidance.
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 directives in many ways.
Where To Find 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.
Most state Bar Association websites also make 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. It will help ensure your living will meets all your state’s requirements. But you can also manually write your living will. There are 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 will guide you through each case. 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. You should choose someone you trust to respect your wishes and to 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: File 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 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?
Creating a living will as part of your retirement planning doesn’t always require a lawyer. Online templates are available, but make sure they’re current and comply with state laws.
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.”
It’s best to have a doctor or lawyer review your living will to ensure it complies with state laws and your intentions are clear. An attorney can also help make sure your documents cover all possibilities with up-to-date legal language.
Make Copies and Update Your Living Will
Share your advance directive with your doctor and health care proxy. Check that medical staff have copies of your directive and keep track of how many you distribute.
Consider carrying a card in your wallet to alert others to your directive in an emergency. Review your documents every three to five years, or more often if there are any major changes in your life — such as marriage, divorce, or children — or if your 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.
Estate Planning 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 or the state deeming your living will invalid.
Choosing a health care proxy you trust is important 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 wishes.
Your state can declare your living will invalid for several reasons. These include not having proper witnesses or the proper number of witnesses. There may be previous versions of your living will that counter your current wishes — but that can invalidate your current one. Make sure your living will meets all the requirements of the state where you live.
Frequently Asked Questions About Living Wills
A living will, often combined with a medical power of attorney to form an advance directive, referred to as an advance directive, is a document that outlines a person’s preferences for medical treatment if they become unable to communicate their wishes.
When creating a living will, it’s important to reflect on your values for end-of-life decisions. Consult with a doctor who is covered by Medicare and complete the living will form. Share the form with your proxy and health care provider. It’s also important to update the form regularly, as your preferences may change over time.
A medical power of attorney can be nullified if you become incapacitated unless you specify it to be a durable power of attorney. A living will does not take effect until you become incapacitated.
As long as you are mentally capable, you have the ability to modify, alter or revoke your living will at any time. It is recommended, but not required, that any changes made be in written form, signed and dated by you.
