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FAQ: Probate & Estate Administration

Ten Things to Think About: Living Wills

  1. A living will is a legal document that declares your wishes regarding the use of life-sustaining treatment should you become incapacitated from a terminal illness or a persistent/permanent vegetative state.

  2. A living will, in most cases, only becomes effective when you are permanently unconscious or terminally ill and unable to communicate your wishes regarding life-sustaining treatment.

  3. A living will can only be revoked by you, and you can change it anytime while you have mental-competency/capacity.

  4. Most states have laws providing that a living will's directives may not be followed if you are pregnant.

  5. A living will authorizes doctors to follow the instructions contained in the document once a determination of incapacity is made.

  6. Each state has specific laws dictating how a living will is to be executed. Most states provide that any competent person eighteen years of age or older can make a living will by signing it in front of two or more witnesses (who also sign the document attesting that the document was signed in their presence). Usually the witnesses cannot be related to you, and they should not be beneficiaries of your estate or have financial responsibilities for your medical care.

  7. A living will generally only avoids treatment when it is determined that recovery is hopeless and any treatment would only prolong the dying process. Your doctor must first determine if your prognosis fits those criteria before your living will has any effect on medical decisions.

  8. Because it is difficult to anticipate every medical condition you may face, it is often a good idea to designate an agent to act as a substitute healthcare decision-maker for you. A Health Care Power of Attorney is a document that designates an agent to make healthcare decisions for an individual. It is different from a living will in that a living will does not appoint anyone to make medical decisions for you. A living will is only a partial safety net in the event there is nobody to assume the duties of making medical decisions on your behalf under your Health Care Power of Attorney.

  9. Many states have laws that protect healthcare providers when they use good faith in following stipulations in a valid living will. Some statutes impose criminal penalties on those who act in bad faith.

  10. A living will is a simple form that may be purchased in most office supply stores. Nevertheless, as part of developing an overall estate plan, you should have your attorney review this document. Failing to properly execute a living will means that it will not be recognized and your wishes will not be carried out.

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