Living Will vs. Advance Directive: Which Is Best for Your Estate?

For example, your living will might specify that you don't want to be kept on a ventilator indefinitely, but it can't anticipate every possible treatment decision. If doctors need to decide whether to pursue an experimental treatment or choose between two surgical approaches, your healthcare agent can make that call based on their knowledge of your values.

Some states offer combined forms called advance healthcare directives that merge living will provisions and POA designation into a single document. Whether you use separate documents or a combined form, having both types of coverage ensures your wishes are honored across a wider range of medical scenarios.

What is an advance directive?

An advance directive is a legal document that outlines your healthcare wishes if you become incapacitated. They apply in cases of injury, illness, or a permanent vegetative state. The directive comes into play when you can no longer make decisions yourself.

Some states create advance directive forms meant to replace living wills, which typically:

• Apply in a broader range of medical situations
• Include pre-selected treatment options
• Hold up better in the face of legal challenges

When there’s an advance directive in your estate plan, physicians proceed with treatment according to your wishes. Additionally, you can terminate these directives at any time.

What happens without an advance directive

Without an advance directive in place, medical decisions fall to your next-of-kin according to your state's hierarchy laws. 

• It typically includes spouse, adult children, parents, siblings in that order. This default system can create significant problems. Research shows 57% of end-of-life caregivers report family conflict, especially when the person making decisions doesn't know your wishes.
• Consider a scenario where your spouse believes you'd want to continue life support while your adult children are certain you wouldn't. Without written documentation, this disagreement can escalate to court involvement, causing delays in your care and emotional strain on everyone involved. In contentious cases, a judge may appoint a guardian to make decisions, someone who never knew you personally.
• Doctors also tend to err on the side of providing maximum life-sustaining treatment when a patient's wishes are unknown. 

Creating advance directives eliminates this uncertainty and spares your loved ones from making gut-wrenching decisions during an already difficult time.

A study in the Journal of the American Geriatrics Society found patients with advance care planning were significantly less likely to die in a hospital. If you would prefer comfort care over aggressive intervention, ensure to honor it with proper documentation.

Types of advance directives

While advance directives come in several forms, three primary types form the foundation of advance care planning. Understanding these core categories helps you determine which documents you need for comprehensive coverage.

The different types of advance directives include:

• Living wills. Specify end-of-life treatment preferences, including decisions about ventilators, feeding tubes, and resuscitation. This document speaks directly for you by documenting the specific treatments you do or don't want when facing terminal illness or permanent unconsciousness.
• Medical power of attorney (POA) or healthcare proxy. Designates someone to make healthcare decisions on your behalf when you can’t. Unlike a living will, this document empowers another person such as your agent to respond to such situations. 
• Advance healthcare directives. Combine living will and POA provisions into one document, providing both written treatment preferences and agent designation. Many states offer this combined form as a streamlined option for comprehensive coverage.

Beyond these three foundational types, specialized directives address specific circumstances:

• Psychiatric advance directives. Addresses mental health treatment preferences, including medications, hospitalization, and electroconvulsive therapy. These are particularly valuable for individuals with conditions that may temporarily affect their decision-making capacity.
• Do not resuscitate (DNR) orders. Instructs medical staff not to perform CPR if your heart stops. Unlike general preferences noted in a living will, a properly executed DNR is a medical order that emergency responders must follow.

Advance directive uses and limitations

Advance directives don’t only apply during terminal illnesses and certain death. Instead, they come into effect when patients face any credible threat of dying. Directives outline the patient’s stance on special or emergency treatment options, like CPR.

Advance directives face limitations. In general, an advance directive:

• Can lead to medical consequences the patient doesn’t understand or expect
• May not hold up if doctors deem a treatment medically inappropriate
• Will go against the patient's wishes if they can’t communicate new directives in time

Advance directive creation process

You can create an advance directive in a few steps:

1. Choose your directive type. Depending on your needs, a living will, power of attorney, or a combination of the two may work best.
2. Find the correct state form. Go through an attorney or government agency for the proper form. Unlike wills, advance directives are more standardized. 
3. Write end-of-life and emergency treatment preferences. Include a comprehensive list of treatment options and preferences.
4. Give your healthcare agent’s name and contact information. If you grant POA to a medical proxy, add their information to your directive.
5. Make the directive legally binding. Depending on your directive type and state laws, you may need to notarize your forms in front of witnesses.

Where to get state-specific advance directive forms

Using the correct state-specific forms is critical for legal recognition. Each state has unique requirements for witnessing, notarization, and acceptable language. Using a generic form or one from another state may render your directive unenforceable when you need it most.

Reliable sources for state-specific advance directive forms include:

• Your state's department of health website, which typically offers free downloadable forms
• The National Hospice and Palliative Care Organization's CaringInfo program regarding advanced directive forms
• AARP's advance directive database, which provides state-by-state forms and instructions
• Your healthcare provider or hospital's patient services department

Some states offer a single combined form that covers both living will and healthcare POA provisions, while others require separate documents for each. Review your state's specific requirements before completing any forms. If you move to a new state, update your advance directive to comply with local guidelines. It ensures your documents remain valid across state lines.

What is a living will?

A living will sets out the medical treatments you want after becoming incapacitated. It also allows you to state what types of medical care you don't want. Undesired treatments can include dialysis, going on a ventilator, and other life-preserving care. Unlike a last will and testament, living wills don't contain provisions for your assets.

Living will forms address healthcare choices near the end of a patient's life, such as:

• Using a feeding tube if you can no longer feed yourself
• Accepting resuscitation if your heart stops beating
• Going through treatment for a terminal illness
• The length of time you'd like your life prolonged.

Alternative names for living wills

Depending on your state, living wills might go by another name, such as medical directive or advance healthcare directive (AHCD). Check your state's specific terminology when searching for the correct forms.

Living will uses and limitations

Living wills focus on terminal illnesses, permanent unconsciousness, and cognitive decline. As a general theme, they come into play when recovery isn't likely or possible. They describe treatments patients do and don't want in these circumstances.

Despite their utility for end-of-life care, living wills:

• Only address a narrow range of medical situations
• Aren't always available when a patient needs care
• Rarely anticipate side effects from treatment

Living will creation process

Creating a living will is fast and inexpensive. You can make a living will in these simple steps:

1. Find the living will guidelines for your state. Use the correct forms and ensure a living will is the best advance directive.
2. Outline your treatment preferences. Specifically, note your preference for life-sustaining treatments.
3. Include end-of-life wishes. Living wills may include religious preferences and organ donor status.
4. Fill out and sign the form. An officially notarized will stand up better in front of physicians or a court. You may need to sign it before witnesses.
5. Update the will as your medical preferences change. If you don't update a living will, an old will may come into effect, leading to unwanted treatment.

Combining a living will and healthcare power of attorney

Living wills and medical powers of attorney aren't an either/or situation. Instead, many people employ both advance directives to ensure that their medical care gets handled the way they want. Broadly, a healthcare power of attorney is another advance directive used in estate plans.

A medical POA lets you designate an individual known as an attorney-in-fact. They can make health and treatment decisions if you become incapable of doing so. While you should discuss your wishes with your attorney-in-fact, your living will can give them further direction and guidance.

Note: A medical proxy and a healthcare power of attorney are interchangeable terms.

Considerations for writing an advance directive or living will

While living wills and advance directives aren’t mutually exclusive, one could serve your interests better. To help shape your estate plan, we’'ll outline the main considerations to keep in mind.

Can you change advance directives and living wills?

You can change or revoke advanced directives and living wills at any time. The process of changing your preferences depends on your type of directive. With a medical POA, you can simply tell them your updated wishes. With a living will, you can:

• Officially revoke your living will
• Notarize a new directive that replaces the old will
• Tell your family, healthcare providers, or medical proxy about any changes

Doctors won't force directives on patients who change their minds. However, an incapacitated patient can't refuse treatment. So updated wills and directives minimize confusion about a patient's wishes.

Even if your preferences haven't changed, review your advance directives every three to five years to ensure they still reflect your values and circumstances. Certain life events should also trigger an immediate review:

• Marriage, divorce, or the death of a spouse
• Death or incapacity of your designated healthcare agent
• Diagnosis of a serious illness or significant change in health status
• Moving to a new state (which may have different legal requirements)
• Changes in personal values or religious beliefs
• Witnessing a loved one's end-of-life experience that shifts your perspective

An outdated directive can cause real problems. For instance, someone who once wanted aggressive treatment at all costs might feel differently after watching a parent spend months on life support. Without updating the directive, doctors would follow the old instructions. Keeping your documents current ensures your care matches your actual wishes.

Does a living will need to be notarized?

You should always sign and notarize your living will. Depending on state law, you may also need to sign the will in front of witnesses. Otherwise, the document may go ignored. Physicians may base treatment on their judgment or hospital policy in this case.

Are physician orders for life-sustaining treatment (POLST) advance directives?

Physician orders for life-sustaining treatment aren’'t advance directives. However, they often work in parallel. A POLST determines end-of-life care based on advance directives and a physician's judgment. Depending on the state, this form requires signatures from:

• Doctors
• Nurse practitioners
• Physician’'s assistants

This signature attests that patients want life-sustaining treatment. Unlike with advance directives, emergency medical technicians must always follow a POLST.

Can family override advance directives?

Family members can't veto an advance directive if it's signed and notarized correctly. Even across state lines, medical practitioners usually defer to a patient's wishes over their family's.

Can medical staff ignore advance directives?

Advance directives aren’'t enforceable to practitioners. While doctors must recognize these documents, medical staff can refuse to offer treatment. Practitioners who refuse to follow a directive must transfer the patient to another provider. This is most often the case when:

• An advance directive requests medically inappropriate treatment.
• The physician has a moral objection to the treatment.

Conversely, medical staff cannot give unwanted treatments. Even if a living will is open to interpretation, violating the patient’'s wishes may lead to a lawsuit, investigation, or malpractice charge.

FAQs about living will vs. advance directive

Do advance directive requirements vary by state?

Yes, each state has its own rules and regulations for advance directives. States create their own forms that account for state policies on appropriate treatment and care. Before creating an advance directive, research your state's specific requirements or consult an estate-planning attorney. If you move to another state, update your estate planning documents to meet local guidelines.

Will my advance directive work if I travel to another state?

Most states recognize legally notarized advance directives from other states, though some only accept directives from states with similar requirements. If you relocate permanently, consider updating your advance directive to meet local guidelines.

This article is for informational purposes. This content is not legal advice, it is the expression of the author and has not been evaluated by LegalZoom for accuracy or changes in the law.