Comprehensive estate planning goes beyond listing assets and beneficiaries. When creating an estate plan, you should also include provisions for end-of-life care.
For new estate planners, living wills and advance directives are easy to confuse. Alternatively, you might assume these legal health documents are mutually exclusive. By learning the difference between an advance directive and a living will, you can use them in tandem to fulfill your medical interests.
Overview: Differences between advance directives and living wills
You might confuse living wills and advance directives because living wills are a type of advance directive. Advance directives refer to any legal form guiding your future medical care, and living wills refer to specific documents that shape end-of-life treatment. So not all advance directives are living wills, but all living wills are advance directives.
Many living wills address questions generally reserved for advance directives. But if they’re presented on a will and not the correct advance directive form, physicians won’t consider the document legally binding. For example, you can turn down resuscitation on a living will, but since that isn’t a legally binding DNR order, doctors may ignore it. The proper forms often depend on state policy.
The difference between an advance directive and living will
Living wills and advance directives outline medical preferences in the case of an emergency. However, they go about it in slightly different ways:
- Area of authority: Advance directives aren’t limited to terminal illnesses.
- Number allowed: You can use multiple advance directives but only one living will.
- Religious terms: Living wills may contain religious or burial preferences.
- Accessibility: Practitioners may have faster access to directives than wills.
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.
For example:
- 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.
Types of living wills and alternative names
Depending on your state, living wills might go by another name, such as:
- Medical directive
- Advance healthcare directive (AHCD)
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 five simple steps:
- Find the living will guidelines for your state. Use the correct forms and ensure a living will is the best advance directive.
- Outline your treatment preferences. Specifically, note your preference for life-sustaining treatments.
- Include end-of-life wishes. Living wills may include religious preferences and organ donor status.
- Fill out and sign the form. An officially notarized will stands up better in front of physicians or a court. You may need to sign it before witnesses.
- 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.
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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.
Types of advance directives
The different types of advance directives include:
- Living wills
- Medical power of attorney (POA) or healthcare proxies
- Advance healthcare directives
- Psychiatric advance directives
- Do not resuscitate (DNR) orders
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, a healthcare 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:
- Choose your directive type. Depending on your needs, a living will, power of attorney, or a combination of the two may work best.
- Find the correct state form. Go through an attorney or government agency for the proper form. Unlike wills, advance directives are more standardized.
- Write end-of-life and emergency treatment preferences. Include a comprehensive list of treatment options and preferences.
- Give your healthcare agent’s name and contact information. If you grant POA to a medical proxy, add their information to your directive.
- Make the directive legally binding. Depending on your directive type and state laws, you may need to notarize your forms in front of witnesses.
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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.
5 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.
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
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State-specific laws on living wills and advance directives
When implementing advance directives in your estate plan, remember that each state has its own rules and regulations. Before creating an advance directive, conduct thorough research and consult an estate-planning attorney.
We’ll explore a few state-specific estate law points below:
There aren’t universal forms for directives
States create their own documents for advance directives. These forms account for state policies on appropriate treatment and care. Although this lack of standardization offers flexibility, it can create problems for the patient. These include:
- Lack of clarity about available medical options
- Confusion about the potential consequences of treatments
- The possibility of misrepresenting medical wishes
To properly use your state’s form (or lack thereof), speak with a healthcare professional or attorney about your directive. An attorney-drafted will can account for blind spots in generic, statutory forms. A medical proxy can also explain your wishes in case of an emergency.
Estate planning requirements are state-specific
On top of using different forms, states set unique requirements for advance directives. For example, a living will might only hold up if someone notarizes it in front of two witnesses. In this case, family members or medical staff might contest it and act against the patient's wishes.
Furthermore, the types of directives available depend on your location. States like Michigan and Massachusetts don't officially recognize living wills. Instead, estate planners need a medical proxy to act on their behalf. Otherwise, doctors may ignore their preferences.
Advanced directives may not apply over state lines
Each state defers to local guidelines for assessing out-of-state directives. Local policies determine how practitioners respond to outside health directives:
- Most states recognize wills and directives legally notarized across state lines
- Some only accept directives from states with similar filing requirements
- The remaining states have no provisions for out-of-state directives
If you move to another state, update your estate planning documents to meet local guidelines.
Need help from a lawyer with living will or advance directive formation?
Ultimately, there’s no oppositional relationship between creating a living will vs. an advance directive. In a robust estate plan, advance directives such as living wills and healthcare powers of attorney can complement each other.
When you plan with help from a trusted source like LegalZoom, you can rest assured that your medical wishes will be respected. Communicating your care preferences lifts the burden of making hard decisions from the shoulders of your loved ones. Whether you choose a living will or another advance directive, this planning can secure your comfort and desired care.
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