What is a living will?

Not a will at all

Despite its name, a living will does not distribute property. It speaks to doctors and family while you are alive but unable to communicate, typically when you have a terminal condition or are in a persistent vegetative state or permanent unconsciousness. It guides decisions about life-sustaining treatment.

What it typically covers

• Cardiopulmonary resuscitation (CPR).
• Mechanical ventilation (breathing machines).
• Artificial nutrition and hydration (feeding tubes and IV fluids).
• Dialysis.
• Antibiotics and other treatments that prolong life.
• Pain management and comfort care, including hospice.
• Organ and tissue donation and, sometimes, wishes about autopsy.

You can choose to receive all available treatment, refuse specific treatments, or allow a trial period of treatment to see whether it helps.

Living will, health care proxy and advance directive

• A living will states what treatment you want or do not want in defined situations.
• A health care power of attorney (health care proxy or agent) names a person to make medical decisions for you when you cannot, including situations your living will did not anticipate.
• An advance directive is the umbrella term; many states combine both documents into a single advance directive form.

Most lawyers and doctors recommend having both. A living will cannot foresee every situation, and a trusted agent who knows your values can apply them to real circumstances.

POLST: a different document

A POLST or MOLST (Physician or Medical Orders for Life-Sustaining Treatment) is a medical order signed by a doctor or other clinician, usually for people who are seriously ill or frail. Unlike a living will, it is an order that emergency medical personnel must follow. A do-not-resuscitate (DNR) order is similar. A living will alone may not stop paramedics from performing CPR.

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Legal requirements

Every state recognizes living wills or advance directives, but the forms and signing rules differ. Most require the signature of an adult with capacity plus two witnesses or a notary; many bar certain people, such as relatives or health care providers, from serving as witnesses. Many states honor documents signed in other states, but using your own state's form avoids questions. Federal law — the Patient Self-Determination Act of 1990 — requires hospitals and nursing homes receiving Medicare or Medicaid to tell patients about their right to make advance directives.

When it takes effect

Usually only when two conditions are met: you cannot make or communicate decisions, and you are in one of the conditions the document describes, as certified by your physician and sometimes a second doctor. As long as you can communicate, your own current wishes control.

Why it matters

Without a living will or health care agent, doctors turn to family members under state surrogate consent laws, usually in a set order — spouse, adult children, parents, siblings. Family members may disagree, and disputes can end up in court. Well-known cases such as Karen Ann Quinlan, Nancy Cruzan and Terri Schiavo arose from exactly this situation. The Supreme Court's decision in Cruzan (1990) allowed states to require clear and convincing evidence of a patient's wishes — which a written directive provides.

How to make one

1. Think about your values and talk with your doctor about likely scenarios.
2. Get your state's form from a hospital, state health department, bar association or an attorney.
3. Sign it with the required witnesses or notary.
4. Give copies to your health care agent, family and doctors, and ask that it be added to your medical record. Some states run registries.
5. Review it after a major diagnosis, a change in relationships, or every several years.

You can revoke or change a living will at any time while you have capacity. Estate planning attorneys usually prepare one together with a will and powers of attorney.

Talking with your family

The document works best when the people around you know what it says and why. Tell your health care agent and close relatives what matters most to you — for example, being able to recognize family, avoiding long stays on machines, or trying every available treatment. Doctors report that families who have had these conversations make decisions faster and with less conflict.