What Is a Living Will? by LegalZoom Staff

What Is a Living Will?

A living will is a legal document that details how you prefer to receive medical treatment when you can no longer make decisions for yourself. This guide highlights the benefits of a living will and why you should encourage loved ones to create one.

by LegalZoom Staff
updated September 29, 2021 ·  8min read

A family with elderly parents in a livingroom looking at documents together

A living will is a legal document that outlines your preferences for medical care if you become incapacitated. It is different from a last will and testament, which details how you want to distribute your assets

People often think writing a living will can wait until sickness or old age. But unexpected injury or disease can strike at any time. Read on to learn more about what living wills are, how to write one, and what to consider including in yours.

The Purpose of a Living Will

A living will is used to instruct care providers in the event that you can no longer make decisions for yourself. It can also shield your loved ones from having to make difficult choices about your care and reduces the chances of confusion or arguments over what's in your best interest.

How To Write a Living Will

Each state has a living will form or specifics about what one should include. Be sure to note your state's requirements to ensure yours is enforceable. If you spend lots of time in other states, you may want to make sure your living will is enforceable in those states too. The following steps are a general guide to writing a living will.

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1. Speak With Your Doctor

If you have a primary care physician or a doctor you regularly see, have a conversation with them about your future care. They can walk you through procedures and treatment options, helping you make an informed choice about the care you wish to receive.

2. Choose What Kind of Care You Want

Your medical care is a personal decision. Certain treatments can be tough on the body, and you should consider how long you would be willing to go through certain regimens. If comfort is a priority for you, make sure that's made known in your living will.

3. Talk With Family Members and Close Friends

A living will can remove the burden of making difficult decisions from your friends and family. Communicate with them so they're aware of your wishes.

4. Name Who Should Make Decisions For You

A living will contains your wishes for care as well as who is able to make decisions on your behalf. In the event of an unforeseen complication, you'll need a representative with your best interests in mind.

A health care proxy (or health care power of attorney) is someone legally appointed to make health care decisions on your behalf. This is different from a financial power of attorney protection that designates someone to make financial decisions for you. A health care power of attorney can be included as part of your living will, or it can be its own separate document, depending on your state.

One important consideration is the potential for disagreements between your health care proxy and your representative with power of attorney. Choosing the same person to fill both roles reduces the potential for conflict.

5. Get Legal Assistance

Writing a living will takes lots of foresight and consideration. Speaking with a lawyer can help ensure the document is written in a clear and instructional way that leaves little or nothing open to interpretation.

You'll need to sign the living will in accordance with the laws of your state, which typically includes signing before a notary or witnesses. Note that you can revise your living will at any time by completing a new document, but it's important to make sure all previous versions are destroyed.

6. File Copies of Your Will With Important Parties

While it may be tempting to keep your living will private, it's important to remember that many people may need access to this document. If they can't find it, your wishes may go unrecognized. Consider keeping an original copy of your living will at home, and sharing additional copies with:

  • Your doctor
  • Your hospital file
  • Your health care proxy or representative with power of attorney
  • Your immediate family

Keep copies of your living will with multiple parties to ensure that someone always has access to your care preferences and wishes.

What to Include in a Living Will

Living wills are only for medical treatment and end-of-life care, and should consider any possible health issue or treatment outcome. Use the following scenarios as a starting point and make sure to talk to a lawyer and doctor before finalizing your living will.

Breathing Assistance

A ventilator helps you breathe when your body is no longer able to do so on its own. This can sustain you for long periods of time, so it's important to consider if you wish to be placed on a ventilator at all and how long you would want to use one before being taken off.

Supplemental Feeding

Tube feeding provides essential nutrients when you're unable to feed yourself. If you wish to be fed intravenously or with a stomach tube, you should note in your living will when and how long you would like treatment to continue.

Medications and Treatment

Antibiotics and treatments like dialysis can fight infections and remove bodily waste. Many can be lifesaving, but you might not wish to receive a particular treatment for an extended period of time. Talk to your doctor about various options and their side effects so you can make an informed decision on your care and treatment.

Palliative Care

Palliative care is often called comfort care because it's meant to reduce pain and focus on comfort while your treatment continues. You might wish to receive pain medication or to avoid aggressive treatments and invasive tests to prioritize your comfort.

Bodily Donations

In a living will, you can declare whether you'd like to donate:

  • Your organs
  • Your bodily tissues
  • Your entire body

You can also declare whether you would like your body to be donated for scientific research purposes.

Posthumous Decisions

A living will, in addition to answering questions on organ and other bodily donations, may grant consent to:

  • An autopsy to determine the cause of death
  • A cremation, burial, or another manner of handling your remains

These are decisions that you should make for yourself. Read on to learn how to put together a living will that can help keep you covered in almost any situation.

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Who Needs a Living Will?

Living wills should be considered by everyone and can provide you and your loved ones with peace of mind.

Creating a living will when you're healthy allows you to consider all of your options carefully and makes it so your loved ones aren't left with difficult choices. If you're undergoing surgery or are critically or terminally ill, a living will is especially essential.

If you don't have a living will and become incapacitated or are unable to make your own decisions, your physicians will turn to your closest family members (typically spouse first, then children, but dependent on your starte) to make decisions.

Living wills are particularly important because many states require them to dictate that your representatives have full authority to make decisions for you. In some instances without a living will, a court order is required to end life support, which can be expensive and heart-wrenching. A physician may also be allowed to decide which family member's viewpoint is the one to follow.

Can a Living Will Be Broken?

A living will can be broken in the following instances.

By Authority of a Health Care Proxy

Your appointed representative has the authority to make decisions for you, including those that may go against wishes you've stated in your living will. It's important to appoint a representative whom you trust.

If Your Will Is Deemed Invalid

Your state might consider a living will invalid for a number of reasons. If you don't have the proper witnesses, have previous wills that haven't been destroyed, your mental state is questionable, or a court finds that fraud influenced your will, the decisions you made in your Living Will may not be followed.

What Is the Difference Between a Living Will and an Advance Directive?

Advance directives and living wills are not always identical. An advance directive can include a living will but might also include:

  • A medical power of attorney agreement
  • Any important information about prior health conditions

An advance directive is a comprehensive document that includes a living will in addition to other important, clarifying information. Be sure to consult with a lawyer to determine what should be included in your advance directive.

What Is the Main Drawback of a Living Will?

Living wills can have oversights—it's impossible to foresee everything that could happen to you. These documents must be broad in what they cover while mentioning as much specific information as possible to mitigate gaps.

What To Consider Before Creating a Living Will

Before creating a living will, you should consider how you feel about the possibility of a range of medical treatment options. It might also benefit you to consider conversations with those closest to you to decide if any loved ones have the capabilities to be your health care proxy. Ask yourself these questions before creating a living will:

  • Would I prefer to be subjected to any and every treatment available in the interest of prolonging my life?
  • Would I rather prioritize my comfort and convenience?
  • Do I prefer to stay at home over being hospitalized?
  • Which family members, friends, and loved ones can I trust to act in my best interests?
  • How much money do I have to cover medical expenses where insurance falls short?
  • Does my state require witnesses, a notary, or both when signing my will?

This is not a complete list of questions but rather a starting point for conversations between you and your doctor or lawyer.

It can be difficult to think about a potential end-of-life situation and the type of medical care you'd like to receive during it. Preparing a living will is a significant undertaking, but it's ultimately worth it to reduce the stress and burden of the unknown on yourself and your family

A living will is a legal document that outlines your preferences for medical care if you become incapacitated. It is different from a last will and testament, which details how you want to distribute your assets

People often think writing a living will can wait until sickness or old age. But unexpected injury or disease can strike any time. Read on to learn more about what living wills are, how to write one, and what to consider including in yours.

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LegalZoom Staff

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This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of the author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.