In recent years, there have been changes made relating to living wills. It is important to be aware of these changes and make sure that your living will is valid and enforceable in the state you live in. The first significant change is that the name is moving away from “living will” to various other names, such as “advance directive,” “advance health care directive” or “declaration.” Secondly, living wills are increasingly being combined with health care powers of attorney. Every state has its own laws and forms relating to living wills. It is critical to work with an estate planning professional to ensure that your living will is valid and meets your state's requirements.
Most people want to avoid thinking about what would happen if they could not communicate their own medical choices because of an illness, accident, or advanced age. However, a critical part of estate planning is planning for end-of-life health care. Traditionally, a person's preferences for end-of-life health care are included in a document commonly known as a living will. A living will indicates your wishes regarding four issues:
- Artificial respiration (ventilator use)
- Pain medication (palliative/comfort care)
In some states, living wills also address organ and tissue donation. A traditional living will is only used if you are in danger of dying and need certain emergency or special measures to keep you alive, but you are unable to make those decisions on your own. By planning ahead, you can ensure that you will get the medical care that you want and relieve loved ones of the decision-making burden during moments of crisis and grief.
In recent years, living wills have gone through two important changes that you should be aware of.
1. The document's name has been moving away from living will
Unlike estate planning tools such as a last will and testament, each state uses its own terminology when referencing the living will document. Recently, states are moving away from calling it a “living will” and instead use different names, such as an “advance directive,” “advance health care directive” or “declaration.”
Agent name also varies by state. Some common choices are:
- Health care agent
- Health care proxy
- Health care surrogate
- Health care representative
- Health care attorney-in-fact
- Patient advocate
The main reason for this change is to avoid confusion with other estate planning documents, like a last will and testament (commonly just referred to as a “will”) and a living trust. Both these documents serve very different functions as compared to a living will. A last will and testament primarily functions to communicate your wishes for your property and minor children after your death. A living trust is a legal document that places your asset in a trust that can be changed or revoked during your lifetime. Like a last will and testament, it addresses what happens to your property after your death. Because of the similarity of the names “living will,” “will,” and “living trust,” some people mistakenly do not include a living will in their estate plan because they do not realize that it is its own unique document.
However, while the country has been moving away from calling the document a living will, no universal term has taken its place. This can cause misunderstandings when people research and attempt to navigate the estate planning process on their own. It is always best practice to work with estate planning professionals knowledgeable about the laws in your state to ensure that you have a comprehensive estate plan in place.
2. Living wills are being combined with health care powers of attorney
In addition to living wills, there is a second estate planning tool that addresses medical care called a health care power of attorney. A health care power of attorney appoints an individual (your agent) to act on your behalf and make medical decisions if you become incapacitated and cannot make medical decisions for yourself. In the document, you can include provisions telling your agent how you would like them to act. A health care power of attorney goes into effect when you are incapacitated, even if you are not in danger of dying. Living wills have a narrower application and are limited to end-of-life decisions when there is no realistic hope of medical recovery.
Every person should include both a health care power of attorney and a living will in their estate plan. Recently, there has been a trend in many states of combining the health care power of attorney with the living will. These combined documents have various names, like “designation of health care surrogate,” “designation of health care proxy” and “advance health care directive.”
There are several advantages of combining living wills with health care powers of attorney, including:
- It eliminates the risk of naming two different agents on separate documents. Because it is a combined document, one agent will be appointed to manage your health care, including end-of-life issues addressed in a living will. If the documents are not combined and you mistakenly name two different agents, disputes can arise.
- It is less likely that a single document will be misplaced. Naturally, the more documents you have in your estate plan, the more likely it is that a document will be overlooked or misplaced. If there is a single document that your doctors and loved ones need to be aware of, there is a much higher probability that it will not be misplaced or lost.
- It is more likely that your wishes will be followed. Sometimes when there are two documents, medical professionals can create an appearance of conflict between the documents.
It is critical to make sure that your living will meets your state's current legal requirements. Every state has its own laws relating to living wills. If your living will does not meet your state's legal requirements, it will not be enforced. Differences in state law that you should be aware of include:
- The number of witnesses needed
- Age requirements for witnesses
- Whether the document needs to be notarized
- If a notary replaces the need for witnesses
- Restrictions on who can be a witness (e.g., spouses, blood relatives or individuals responsible for medical costs)
- Restrictions on who can be an agent (e.g., medical or facility providers)
- Limitations on an agent's powers (e.g., decisions during pregnancy, mental health facility admissions and sterilizations)
- Mandatory language that you must include in the document.
Many states have a standard form that you can fill out to make the process easier. The forms give you questions to answer and specific things that you can choose to accept or reject. You can sometimes add additional information about your wishes if the form does not include everything you are concerned about. However, any information you add must be permitted under state law.
An experienced estate planning attorney can ensure that you have the correct legal document for your state. They can assist you in completing the form and make sure that you meet all formalities of execution, such as witness signatures. It is not safe to rely on DIY documents you find online because they may not be up-to-date or state-specific.
Below is a chart showing which states currently have standard living will and health care power of attorney forms.
|States That Currently Have Standard Living Will and Health Care Power of Attorney Forms|
|Nevada||Yes||New Hampshire||Yes||New Jersey||No||New Mexico||Yes|
|New York||Yes||North Carolina||Yes||North Dakota||Yes||Ohio||No|
|South Carolina||Yes||South Dakota||No||Tennessee||No||Texas||Yes|
Whether or not a living will that you created out-of-state will be accepted depends on the state's laws. In general, there are three approaches:
- Many states accept living wills or advance directives from other states if they are legally valid in the state where they were made.
- Some states only honor living wills if they comply with their own laws.
- A few states are silent on whether they accept out-of-state living wills, creating a legal gray area.
Because each state has its own unique laws and forms, it is critical to create a new living will and revoke your old document if you move to a new state. If you spend a significant amount of time in multiple states, you should talk with an estate planning professional about your best course of action. Generally, you should avoid having one document for one state and a second document for a second state.
There are several very important steps you must take after you have prepared your living will. First, you should put the originals in a safe but easily accessible place. Next, you should provide copies of the living will to several different individuals, including:
- Your medical providers (i.e., doctors, hospitals, and your hospice or palliative care team)
- Your health care agent and any alternate agents
- Your attorney
You should keep a record of who has your advance directives and review it every few years to ensure that every person who needs a copy has one.
Some states, like Arizona, have online directories where you can file the document with the state. The purpose of these directories is to provide medical professionals easy access to the advance directive. Your estate planning attorney can help you register your living will if you have questions.
Because you can never predict when you may be in an accident or become seriously ill, it is a smart idea to keep a copy of your living will when you are traveling. One option is to carry a wallet-sized card that indicates that you have a living will, identifies your health care agent, and states where a copy of your living will can be found.
The final step that you should take is to talk to your family members and other important people in your life about your advance directives and your health care wishes. Having these discussions early on serves several purposes.
- It helps ensure that your family members and agents clearly understand your wishes. When you designate someone as your agent in a health care power of attorney, they will have to make many decisions on your behalf in many situations that you do not explicitly outlined in the document. If you have a discussion ahead of time about your wishes, they will be able to better act on your behalf.
- Having a clear understanding of your preferences can help your family members avoid conflict. When faced with making serious medical decisions, your loved ones may have different beliefs about what you would have wanted done. These differences in opinion can lead to fighting. If you give your family members a chance to review your plan and ask questions, you reduce the risk of future conflict.
- Communicating your health care preference helps family members avoid feelings of guilt. Making decisions about a loved one's medical care is extremely emotional, especially if you are unsure whether you are making the right choice. By clearly communicating your wishes, it relieves your loved ones of this emotional burden.