How to Create a Living Will

A living will, also known as an advance medical directive, is a document created by an individual to spell out his or her wishes about what should happen in case of terminal illness or unconsciousness. The purpose of a living will is to make it easier for loved ones to make medical or health care decisions when an individual is no longer capable of participating in those decisions. The authorization of living wills by state legislatures came about in 1990 in response to a Supreme Court decision about Nancy Cruzan. Cruzan, who was in a persistent vegetative state, was kept alive for many years against the wishes of her family, and the family was forced to file suit against the Commissioner of the Missouri Department of Health. At the time, the law did not provide a way for an individual to declare, in advance of mental or physical incompetence, his or her wishes about how to be treated if there was no chance of recovery or improvement.

Basically, a living will or advance medical directive must include a statement such as this:

If I should have an incurable or irreversible condition that will result either in (1) death within a relatively short period of time or (2) a state of permanent unconsciousness from which there can be no recovery (according to a reasonable degree of medical certainty), it is my desire that my life not be prolonged artificially by the administration of life-sustaining procedures. If I am unable to participate in my health care decisions, I direct my attending physician to withhold or withdraw any life-sustaining procedures that are not necessary for comfort or freedom from pain, but merely prolong the natural dying process.

Although some living will forms available commercially are very succinct, most ask you to declare your intentions in regard to specific types of life-sustaining procedures. Such procedures can include things such as artificially supplied food or water, kidney dialysis, chemotherapy, antibiotics, surgery, or cardiopulmonary resuscitation (CPR). Often, critically ill or elderly people put in place "do not resuscitate" orders specifically stating that they do not want CPR performed on them should they go into cardiac arrest or stop breathing. The more specific you can be in expressing your wishes, the easier it will be for your loved ones should the need ever arise for them to call upon your living will to represent your wishes.

Even if you have a medical power of attorney in place, you also need to enact a living will, because the two documents serve different purposes. A medical power of attorney authorizes another person to make health care decisions for you if you are no longer capable of making them, with the assumption that you will survive such decisions. A living will, however, sets forth your intentions in case of terminal illness or persistent vegetative state (unconsciousness, such as coma). A living will is essential if there is reasonable doubt that the patient will be able to improve or recover from their current condition. Most states allow a living will and medical power of attorney to be combined into one document.

For a living will to be considered valid, it must be in writing, signed by you or your representative (someone with power of attorney, for example), and it must also contain the signatures of two adult witnesses at least 18 years old. Each state has its own regulations for who may serve as a witness to a living will, but all states require the witnesses to be adults. Some states do not allow witnesses to be health care providers or employees of care facilities, and some require that at least one of the witnesses be someone who is not related to the patient in any way and would not be entitled to any of the patient’s estate after they die. Some states do not require that a living will be notarized, but even if your state does not require it, doing so just further cements your intentions.

Before creating a living will or medical power of attorney, be sure to check into the laws of your specific state to be sure you’ve covered all bases from a legal standpoint. Although any kind of signed document is better than nothing, you should take the time to make your living will as thorough and complete as possible, and make sure it adheres to your state’s regulations.