Who can create a living will?

Generally, anyone who is at least 18 years old and of "sound mind" can create a living will. In this context, sound mind usually means the ability to understand what the living will is, what it contains, and what it does.

How will my doctor decide that I can't make decisions for myself?
There is variation from state to state, but doctors tend to evaluate the following types of factors in determining whether or not you can make decisions for yourself:

  • whether you can understand what the doctor is telling you and the consequences of any decision you make
  • whether you can make a decision based on the doctor's information and
  • whether you can tell your doctor what you've decided. This doesn't have to be verbal communication. Any expression of your desires will be sufficient (including a nod or other acknowledgment)
After your doctor has made this determination, most states require this decision be explained in writing before any medical treatment decision can be made.
When does the living will take effect?
A living will becomes effective when your primary physician decides that you can no longer make your own healthcare decisions. If you are ill or injured and cannot express your healthcare wishes, and your doctor certifies this fact in writing, your living will takes effect.
Can I name my healthcare provider as my healthcare agent?
No. State laws usually prohibit you from naming a healthcare provider as your agent. Employees of your provider (or your provider's owner) can't be agents either, unless they are related to you.
Are there any decisions my healthcare agent can't make for me?
In addition to any specific prohibitions you include in your living will, your healthcare agent may not:
  • put you in a mental health facility
  • authorize extreme psychiatric treatment or surgery
  • authorize sterilization or abortion
  • authorize any mercy killing
  • authorize any act that goes beyond what you authorized in your healthcare power of attorney
Will my living will ever expire?
Your living will remains effective for as long as you live, unless you intentionally revoke it or the courts get involved (e.g., someone challenges whether you had capacity to make the document, or a court questions whether your document meets the state's requirements). Generally, court intervention into these matters is rare and limited.

If you named your spouse as your healthcare agent and you get divorced, some states will consider the appointment revoked. If you listed an alternate agent, he or she will take over. In any event, it may be a good idea to create a new living will after your divorce, so there will be no confusion.
How can I change or revoke my living will?
You can change or revoke your living will whenever you want, as long as you are of sound mind and not under any undue duress or influence. See "Revoking or Canceling a Living Will" in the Living Will Education Center.
Should I notarize my living will?
Because of the severe consequences associated with a living will and the important decisions outlined in it, some people choose to have their living will notarized and signed by witnesses. Your witnesses do not need to go with you to the notary unless you will be signing the document at that time.
Do physicians and healthcare providers really pay attention to this document?
Generally, healthcare providers and physicians are required by law to follow the directives in your living will. It's a good idea to talk to your doctor about the document and make sure that he or she is willing to follow the instructions you've included. After you've completed your living will, schedule an appointment with your doctor to go over it.
What is a living will?
A living will is a document that provides specific medical instructions to be followed if you are alive, but unable to communicate your wishes. A LegalZoom Living Will includes a healthcare power of attorney, which you can use to appoint a healthcare agent to make healthcare decisions on your behalf if you become incapacitated.

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