What Is a Living Will?

Thinking about – much less planning for – the end of your life can be a challenging process, but it’s important 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 2023 Wills and Estate Planning Study.¹ Like wills and trusts and powers of attorney, a living will is an essential estate planning document to make sure your wishes are carried out with respect to your personal medical care while you are still alive.

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 health care wishes in the event you experience a terminal illness or medical emergency.

Living Will Defined

A living will — which is different from a regular will, a living trust or an advanced directive — is an important written legal document that you should consider as part of your estate planning. It specifically outlines the medical actions you want your health care providers to take or not to take if you become seriously ill and experience a medical situation or emergency that puts you in a terminal condition or a persistent vegetative state and prevents you from communicating and making end-of-life health care decisions for yourself. If this happens, a living will “speaks your wishes on your behalf” to your loved ones and medical personnel who may be caring for you toward the end of your life.

Depending on your state of residence, living wills may be referred to by another name, such as medical directives or advance health care directives (AHCD).

What Is Included in a Living Will?

When thinking about having a future medical condition or disease that is terminal, you have important decisions to consider regarding possible treatments that may only extend your life for a limited amount of time. Your living will should outline which life-sustaining treatments or measures you want — or don’t want — to receive or have taken on your behalf. These health care instructions may include:

• Cardiopulmonary resuscitation (CPR) to restart the heart after it has stopped beating.
• Mechanical ventilation to help you breathe when you are unable to breathe on your own.
• Tube feeding to provide nutrition to your body when you are unable to feed yourself.
• Dialysis to filter waste out of your blood and manage fluid levels when your kidneys fail to function.
• Antibiotics and antiviral medications to treat a variety of infections.
• Comfort care (palliative care) — which includes a spectrum of possible medical interventions — to keep you comfortable and manage your pain.

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

• Do you want to donate your organs, bodily tissues and/or your entire body for transplantation or scientific research?
• Do you want an autopsy performed to determine your exact cause of death?
• Do you want a cremation, burial or other special handling of your remains after your death?

Who Needs a Living Will?

A living will is important for both you and those you love. You may experience greater peace of mind about your future medical care at the end of your life knowing that your specific wishes will be followed as outlined in your living will. In addition, creating a living will may make it easier for you to have a conversation with the people closest to you about how you want to be cared for at the end of your life if you lose the ability to communicate and make decisions for yourself. A living will allows family members to make life-saving decisions.

In general, everyone would benefit from having a living will because life is uncertain and medical emergencies can happen unexpectedly. However, individuals who are suffering from a terminal disease or life-threatening injury may feel more urgency to create a living will while they are still cognitively able to do so.

How Does a Living Will Work?

In addition to a living will, you also may have a durable power of attorney for health care, a legal document that gives your designated health care agent or medical proxy the authority to make health care decisions o n your behalf if you become incapacitated. Medical instructions outlined in your living will can be followed only when you (the individual named in the living will) faces no possibility of recovery or cure from an end-of-life medical condition (e.g., going into an irreversible coma after a severe car accident) or terminal disease (e.g., inoperable or untreatable cancer).

What Are the Pros & Cons of a Living Will?

Living wills have certain advantages, but they have a few drawbacks as well. The pros of having a living will include:

• Clarity about your future wishes — A living will ensures you get what you want and need during end-of-life care by clearly delineating the medical treatments/procedures you do or do not want to receive as life-saving measures when you can longer speak for yourself. This legal document provides clarity to your physicians, health care providers and loved ones.
• Helping your loved ones — Having a living can ease the emotional burden on your family members and loved ones of having to make critical decisions during an urgent medical crisis or at the end of a difficult terminal disease. A living will may permit those you love to be more fully present to you at the end of your life.
• Revisions allowed — If you feel the need to update or change your living will while you are still healthy, you can make whatever revisions you would like. For example, a new medical treatment or drug may become available that you now want to include after you have already created your living will.

Some of the cons of having a living will for you to consider are:

• Potential inaccessibility — A living will loses its purpose if your loved ones and health care providers either don’t know you have one or don’t have access to it. Many people make the mistake of locking their living will in a safe deposit box or secure home location where no one has easy access to it.
• Full understanding required — When you create a living will, you are outlining future health care directives for yourself that may not take effect for decades down the road. While you are still healthy and of sound mind, carefully and thoughtfully consider what you are signing and implementing beforehand. Don't wait until an emergency to create a living will, as it may be too late if not understood.

• Arguments over meaning — No matter how specific you are in drafting your living will, you will never be able to include every contingency or situation you may face. Consequently, there may be future disagreements among family members or medical providers over the meaning of its content. Such arguments could change the direction of your medical care.

What’s the Difference Between a Living Will & a Regular Will?

The main difference between a living will and a regular last will and testament is what they focus on: a living will dictates the parameters of your medical care while you are still alive, and a regular will outlines your final wishes regarding your money, real property and people under your care after you die. With a living will, you can designate a health care proxy to be your agent if you become incapacitated. This health care proxy will communicate your health care wishes and make medical decisions on your behalf if you are unable to speak for yourself. An executor is named in a regular will to manage the distribution of your assets after your death. Your health care proxy and executor can be two different individuals; for example, one person may be better at making medical decisions than financial ones. Finally, regular wills need to go through probate court to determine their validity, whereas living wills do not.

What’s the Difference Between a Living Will & a Living Trust?

A living will and a living trust have one word in common — “living” — which means that both of them are created while you are still alive. Whereas a living will focuses on your health care wishes, a living trust focuses on your financial assets. A living trust, which avoids probate, is often established as an estate planning tool to efficiently transfer assets to your beneficiaries and potentially reduce estate taxes for them.

What’s the Difference Between a Living Will & an Advance Directive?

A living will is a type of advance directive. An advance directive refers to any legal document that informs your doctor(s) of your wishes about your future medical care if and when you become unable to make decisions yourself. A living will addresses what you want to happen specifically with regard to end-of-life treatment. By definition, not all advance directives are living wills; however, all living wills are advance directives.

Here are several additional distinctions between living wills and advance directives:

• Advance directives can address other types of medical care beyond terminal conditions (for living wills), including medical events like dementia, strokes and comas. Other examples of advance directives are do not resuscitate (DNR) orders, psychiatric advance directives and special instructions for blood transfusions.
• Legally you can have only one living will, but you may have numerous advance directives.
• Living wills also may include information about religious or burial preferences.

Steps to Create a Living Will

There are four key steps in creating a living will: identifying your values and end-of-life wishes, discussing these wishes with your family, selecting a health care agent and documenting all the details in a legally binding living will.

1. Identify Your Values and Wishes

The first step in creating a living will is to reflect on your personal values and how they would influence the kind of care you want to receive at the end of your life, especially if you become incapacitated and are no longer able to communicate your wishes to your doctors and health care providers. Here are some questions to think about:

• Do you value being independent and self-sufficient? What would it be like for you to lose your independence and self-sufficiency and totally rely on others to live?
• What health situations might make you feel like your life is no longer worth living?
• Would you want to receive medical treatments or procedures to keep you alive in any kind of situation or in all situations?
• Would you wish to receive treatment for a life-threatening disease or medical emergency only if a cure or full recovery is possible?

2. Discuss Your Wishes with Your Loved Ones

Talking about death and end-of-life care with your loved ones may be quite challenging and upsetting. However, it is important that your family members and the people closest to you fully understand your wishes about the kind of health care you want to receive when you are no longer able to speak for yourself.

By developing a living will, you also are relieving the emotionally intense burden of decision-making from your loved ones at a time when they may be grieving what is happening to you — having to face the end of your life — and may not be ready or able to make the difficult health care decisions regarding possible treatments or procedures that may prolong your life or to know when is the right time to stop taking any medical actions to keep you alive in a state you would not want to sustain.

3. Choose Your Health Care Agent

Choosing someone to serve as your health care agent — also referred to as durable power of attorney for health care or health care proxy— is a major decision. Often this person is your spouse, child, sibling or other trusted relative or close friend. Regardless of how detailed your living will is, not all medical situations can be anticipated, so your health care agent may at some point be called upon to make a judgment about what your health care wishes might be without relying on anything explicit in writing from you. Because this individual may play a critical role in your end-of-life care, you need to choose someone who:

• Satisfies all of your state’s legal requirements to serve as your health care agent.
• Is not one of your attending physicians or a member of your health care team.
• Agrees to act responsibly as your health care agent and is willing and has the maturity and ability to discuss medical care and end-of-life situations with you and your loved ones.
• Is trustworthy to make responsible decisions in accordance with your health care wishes and personal values.
• Can be trusted to advocate on your behalf when there are disagreements and arguments among your loved ones about your medical care.

4. Document Your Wishes in a Legal Document

Finally, after you have completed these preceding steps, it’s time to create your legally binding living will document. Each state has its own requirements for living wills, but in general, you will need the following:

• Your full legal name and the date on which your living will was drafted.
• A personal statement from you documenting that you have the mental competency required to draft your living will.
• Your list of specific health care instructions outlining your wishes for future medical care.
• The name of the person you have chosen to be your health care agent.
• Signatures from two witnesses.
• Your signature.

Depending on your state, you also may need to have your living will notarized. You do not need an attorney to create a living will, but it is best to seek professional guidance.

How to Implement a Living Will

Congratulations on creating a living will! You have now joined a select group of 46% of Americans who have a living will.²

After you have created your living will, you will need to implement it, which involves several essential communications and follow-up responsibilities on your part. First, you need to contact your health care agent and inform them of your wishes. Next, you need to review your living will with your family members and physicians. Finally, it’s important to keep your living will in an accessible place and review and update it whenever necessary.

Communicate Your Wishes to Your Health Care Agent

Make sure you discuss your living will with your health care agent so they clearly understand your future wishes. Review your health care instructions in detail together and answer any questions and address any concerns that your health care agent may bring up with you.

Share Your Living Will with Your Family and Doctors

By having these discussions about your future medical care wishes with your family members and doctors now, you can avoid confusion and disagreements down the road. Make sure they clearly understand what your wishes are and talk over their questions and concerns. Communicating with your family now also may help to alleviate feelings of guilt when the actual time comes to honor your wishes.

Involve Your Health Care Providers in Implementing Your Living Will

Share your living will with your entire team of health care providers so they can help implement your living will when the time comes. If your medical providers and your family members are aware of your wishes and have worked through their concerns while you are healthy and of sound mind, you can help reduce the likelihood of disagreements about your care when you are experiencing an end-of-life medical situation.

Keep Your Living Will Accessible

Make sure your living will is readily accessible, not stored somewhere that is hard to access, such as a safe deposit box or locked personal safe inside your house. It’s also a good idea to keep a list of everyone who has a copy of your living will for quick and easy reference.

Review & Update Your Living Will

Your living will should not be a static legal document; it should be updated and revised as necessary, particularly when:

• You receive a new medical diagnosis. Receiving a terminal illness diagnosis may precipitate changes to your living will. Be sure to discuss various treatments and health care decisions with your doctor.
• You change your marital status. When you become divorced, separated, widowed or remarried, you may want to change who your health care agent is.

In general, it’s a good practice to review your living will every five years or so. You may learn about new medical advances or treatments that have altered your end-of-life care wishes.

When you update your living will, you must create a new document, distribute your revised living will to all necessary parties (your doctors, family members, etc.), include a new copy in your medical file and destroy all the old copies. Be sure to inform your health care agent and loved ones of the changes you have made.

Just like there can be consequences of your dying without a will, there may be issues related to your medical care according to your personal wishes if you become seriously ill, can no longer make your own decisions and don’t have a living will. Creating and implementing a living will is the best protection to insure you are cared for in the specific ways you want to be toward the end of your life.

Sources

1. 2023 Wills and Estate Planning Study. https://www.caring.com/caregivers/estate-planning/wills-survey/.
2. How Many Americans Have a Will? https://news.gallup.com/poll/351500/how-many-americans-have-will.aspx.