What Is a Living Will?

Thinking about – much less planning for – the end of your life can be a challenging process, but it's essential to consider how you want to be cared for and what you want to have happen leading up to and after your death. In fact, 2 out of 3 Americans lack any kind of estate planning document, according to Caring.com's 2024 Wills and Estate Planning Study.¹

Take some time to understand the basics of a living will and how to approach creating and implementing this important legal document so you can decide how best to plan for your future healthcare wishes in the event you experience a terminal illness or medical emergency.

Living Will Defined

A living will is a legal document to include in your estate planning that outlines the medical actions you want healthcare providers to take or not take if you are seriously ill and unable to communicate or make end-of-life decisions.

If this occurs, a living will communicates your desires to your loved ones and medical providers who may be assisting you at the end of your life. Depending on your state of residence, living wills may be referred to as medical directives or advance health care directives (AHCD).

How Does a Living Will Work?

A living will - distinct from a traditional will or living trust - is a legal document that outlines your preferences for medical treatment in scenarios where you cannot communicate due to severe illness or incapacitation. Here's a summary of how it functions:

1. Activation: Living wills only activate under specific conditions outlined in the living will. A physician (or sometimes two, depending upon the state) must decide whether the patient's condition meets these conditions.
2. Guidance for Medical Decisions: The living will provides specific instructions on the acceptance or refusal of medical treatments, including life-sustaining measures such as artificial respiration, feeding tubes, and resuscitation efforts, based on the conditions you've specified.
3. Legal Status: While its legal recognition varies by jurisdiction, in many places, a living will is legally binding on healthcare providers, ensuring your treatment preferences are followed as closely as possible.
4. Role of Healthcare Providers: Physicians and medical teams refer to your living will to guide their decisions, ensuring that the medical care provided aligns with your wishes, especially in end-of-life situations.
5. Family and Loved Ones: A living will clearly states your health care preferences, relieving your family of the burden of making decisions about your care and reducing potential conflicts among family members about what you would have wanted.
6. Complements Other Directives: Often used alongside other advance directives, such as a durable power of attorney for healthcare, it ensures comprehensive coverage of your wishes, including appointing someone to make decisions when the living will's conditions aren't met.

A living will is a crucial component of health care planning. It provides clarity and direction for your care preferences in critical moments and ensures your autonomy is respected even when you cannot speak for yourself.

How a Living Will Works in Practice (Example)

Imagine you are in a car accident and lapse into a permanent vegetative state. Your living will specifies that you do not want to be kept alive on a ventilator under these circumstances. Your doctors would follow your instructions and remove the ventilator.

What Is Included in a Living Will?

When considering a future medical condition or terminal illness, making important decisions about potential treatments that could only prolong your life briefly is crucial. Your living will should outline which life-sustaining treatments or measures you want — or don't want — to have taken on your behalf. These healthcare instructions may include the following:

Core Elements of a Living Will

Life-Sustaining Treatments: Your specific instructions about medical procedures or invasive tests you desire or want to refuse if you become terminally ill, permanently unconscious, or unable to make your own care decisions. This could include:

• Cardiopulmonary resuscitation (CPR): Efforts to restart your heart and breathing.
• Mechanical ventilation: Using a machine to help you breathe.
• Artificial nutrition and hydration: Food and water are provided through a feeding tube.
• Dialysis: Treatment to filter your blood when kidneys fail.
• Comfort care (palliative care): Measures to relieve pain and suffering, including pain medication, even if they don't directly treat the underlying condition.

Conditions that Trigger Your Preferences

Clearly define the situations in which you want your living will to take effect. Common scenarios include:

• Terminal illness: A condition that cannot be cured and is likely to lead to death within a relatively short time.
• Permanent unconsciousness: A state where you show no signs of awareness or responsiveness for an extended period.

Specific Instructions

Provide detailed direction on desired treatments in different situations.

• Example 1: "If I am diagnosed with a terminal illness and have less than six months to live, I do not want CPR or artificial nutrition and hydration."
• Example 2: "If I am in a permanent vegetative state, I want all life-sustaining treatments withdrawn, but I want to continue receiving comfort care."

Additional Considerations

In addition, a living will allows you to specify how to handle bodily donations and offer additional instructions regarding the final handling of your remains:

• Organ & Tissue Donation: Would you like to donate your organs, bodily tissues, or entire body for transplantation or scientific research.
• Religious Considerations: If your faith influences your medical decisions, discuss these with your doctor and include relevant instructions in your living will.

Who Needs a Living Will?

While everyone can benefit from having a living will, it's especially crucial for certain individuals. Here's a breakdown of who needs a living will and why:

Individuals with Specific Circumstances:

• Chronic or Terminal Illnesses: If you face a serious health condition, a living will allows you to express your desires regarding life-sustaining treatments clearly.
• Strong Preferences on End-of-Life Care: If you have definite opinions about the types of medical interventions you would or wouldn't want, a living will ensures those opinions are respected.
• Desire to Avoid Family Conflict: A living will eliminates the potential for disagreements among loved ones about your care, especially in emotionally charged situations.

Anyone Concerned About:

• Maintaining control over healthcare decisions: A living will gives you a say in your care, even when you can't directly participate.
• Reducing the burden on loved ones: Spare your family from making agonizing decisions without clear guidance.
• Ensuring their values and wishes are honored: Feel confident that your beliefs and priorities will be followed throughout your medical care. A living will ensures your voice is heard.

It's a proactive step towards ensuring your healthcare choices are respected and your loved ones have clarity during potential medical crises - regardless of age or health status.

Pros: What Are the Benefits of a Living Will?

Here's a breakdown of the primary benefits of having a living will:

Benefits for You:

• Control over your care: A living will puts you in the driver's seat of your medical treatment. You determine the kind of care you receive at the end of your life, ensuring alignment with your values and beliefs.
• Serenity: Knowing your wishes will be followed, regardless of your ability to communicate, offers immense comfort and relieves anxiety about the future.
• Avoidance of unwanted interventions: You can explicitly state which life-sustaining treatments you do not want, preventing potentially burdensome or invasive procedures.

Benefits for Your Loved Ones:

• Clarity during difficult times: A living will provides a roadmap for your family and healthcare team, eliminating the uncertainty and potential conflict surrounding end-of-life decisions.
• Relief from decision-making burden: Your loved ones won't have to agonize over unsure choices, knowing they're simply carrying out your previously expressed wishes.
• Reduced emotional stress: Having a plan can alleviate some of the emotional turmoil and potential guilt associated with making life-or-death decisions for someone else.

Additional Pros:

• Potential cost reduction: Avoiding unwanted or unnecessary medical interventions may help manage healthcare costs.
• Enhanced doctor-patient relationship: Discussing your living will with your physician fosters a deeper understanding of your priorities and open communication about end-of-life care.

Cons: What Are the Drawbacks of a Living Will?

While living wills offer significant benefits, it's also important to consider their potential drawbacks. Here's a breakdown of the main cons:

• Limited Scope: Living wills primarily address life-sustaining treatments in specific end-of-life scenarios. They may not cover every possible medical situation, nor do they address aspects like pain management or choice of care setting.
• Challenges with Anticipation: It's difficult to predict every potential medical scenario and how you might feel about specific treatments in the future. Your healthcare preferences could evolve.
• Potential for Misinterpretation: While you should strive for clarity, some language in your living will might be open to interpretation, particularly if your condition doesn't perfectly match your outlined scenarios.
• Necessity for Updates: Your living will is not a "set it and forget it" document. Regular reviews and revisions are crucial, especially if your health status, values, or family situation changes.
• State-Specific Variations: Laws and requirements for living wills vary from state to state. Failing to follow your state's specific guidelines could affect the validity of your document.

Mitigating the Cons:

• Pair with Other Directives: A living will is most effective when combined with other advanced care planning tools, like a durable power of attorney for healthcare. This allows you to designate a trusted person to make decisions not covered by your living will.
• Thorough Communication: Discuss your living will extensively with your healthcare agent (if you appoint one), family, and doctors. This helps ensure everyone understands and respects your wishes.
• Regular Review: Schedule periodic updates to your living will, even if no significant changes exist. This keeps it current and reduces the chances of it containing outdated information.

Steps to Create a Living Will

Creating a living will is a proactive step towards ensuring your healthcare wishes are respected if you're unable to communicate them. Here are the steps to creating a living will:

Step 1: Reflect on Your Wishes

Consider Your Values: Reflect on your beliefs and values regarding end-of-life care. Consider under what circumstances you would want to receive or refuse life-sustaining treatments, such as artificial ventilation, resuscitation, or tube feeding.

Consult with Healthcare Providers: Speaking with healthcare professionals can provide insight into the implications of various medical interventions and help clarify your decisions.

Step 2: Legal Requirements

Understand State Laws: Research the legal requirements for living wills in your state, as laws vary regarding what the document must include and how it must be witnessed or notarized. You can find state-specific resources and templates on AARP: https://www.aarp.org/caregiving/financial-legal/free-printable-advance-directives/.

Step 3: Draft the Living Will

Use a Template or Attorney: You can start with a template from a reputable source or consult an attorney specializing in estate planning or healthcare directives to ensure your living will meets legal standards and accurately reflects your wishes.

Be Specific: Clearly state your wishes regarding medical treatments, including life-sustaining measures and pain management. Specify conditions under which your wishes apply, such as terminal illness or permanent unconsciousness.

Step 4: Choose a Health Care Agent (Optional but Recommended)

While not part of the living will itself, appointing a durable power of attorney for healthcare (a healthcare proxy) who can make decisions on your behalf if you cannot do so complements your living will. Ensure this person understands your wishes, agrees to represent them, and is comfortable making health care decisions.

Step 5: Sign and Witness the Document

Follow Legal Protocols: Ensure your living will is signed, dated, and witnessed according to your state's requirements. This may include notarization or having a certain number of witnesses who are unrelated to you and do not stand to benefit from your death.

Step 6: Communicate and Distribute

Inform Your Family and Healthcare Proxy: Discuss your wishes for care and the content of your living will with close family members and your chosen healthcare proxy to prepare them and ensure no surprises in an emergency.

Provide Copies to Healthcare Providers: Provide copies of your living will to your healthcare providers, primary care physician, and any specialists you regularly visit. You might also want to keep a copy with your other important papers and possibly in a digital health records system if available.

Step 7: Review and Update as Needed

Reassess Periodically: Life changes, such as new diagnoses, the death of loved ones, or changes in your values, may affect your wishes. Review and, if necessary, update your living will to reflect your current wishes.

What's the Difference Between a Living Will vs. Advance Directive?

The terms "living will" and "advance directive" are often used interchangeably, but they have specific distinctions that are important to understand when planning for healthcare decisions.

• An advance directive is a broad category of legal documents that outline your healthcare preferences if you cannot make decisions for yourself. There are different types of advance directives, and a living will is one of them. Advance directives can address other types of medical care beyond terminal conditions, including medical events like dementia, strokes, and comas.
• A living will focuses specifically on your wishes regarding life-sustaining treatments (like ventilators, feeding tubes, or resuscitation) in scenarios of terminal illness or permanent unconsciousness.

Other Types of Advance Directives

• Durable Power of Attorney for Healthcare (aka Healthcare Proxy): This designates a trusted person to make medical decisions on your behalf if you can't. This can cover a broader range of situations beyond just the end-of-life scenarios a living will addresses.
• Do-Not-Resuscitate Order (DNR): This is a specific instruction to healthcare providers not to perform CPR if your heart or breathing stops.
• Psychiatric Advance Directives: These outline preferences regarding mental health treatment in the event of incapacitation.

A living will is a vital type of advance directive, but it's often most effective when combined with other tools for a well-rounded approach to end-of-life planning. For an optimized plan, it is recommended that you consult with an estate planning attorney who can provide personalized advice based on your specific situation, goals, and state laws.

Conclusion

Taking the time to prepare a living will is a profound act of self-determination and care for those you love. It's a gift to leave your loved ones a path to follow when words are difficult to find.

Don't leave your future medical choices to chance. Start protecting your wishes today by researching state-specific living will forms and discussing your decisions with your family and doctor.

Sources

1. 2024 Wills and Estate Planning Study - Caring.com. https://www.caring.com/caregivers/estate-planning/wills-survey/.
2. Living Will - National Cancer Institute. https://www.cancer.gov/publications/dictionaries/cancer-terms/def/living-will.
3. Living Will - Cornell Law School - Legal Information Institute. https://www.law.cornell.edu/wex/living_will.