Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 19, 2018

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Yes. A living will is a document spelling out what kind of medical care a person wants if he or she should have a terminal illness or become incapable of communicating his or her wishes. A living will can set out the kinds of treatment a person does or does not want in any circumstances. This could include telling medical personnel when to maintain life support, when to turn it off, and when not to resuscitate you. If you don’t leave these instructions, someone else will make these decisions for you if you should become incapacitated.

The name of this document, often called a living will, is confusing, since this document isn’t really a will at all. It doesn’t do things a will does, like transfer your property or name guardians for your minor children. Even if you have a living will, you still need a will, or some other estate planning document, to do those things.

The Law Differs per State

Each state has laws about living wills, how they are to be prepared, when they will go into effect, and how your instructions will be applied. Some states require a living will to be witnessed, and sometimes only certain people can act as witnesses; some states have a standard form that is recommended, and some require it to be signed before a notary. Unless your state has a standard form for a living will that fits your circumstances, you might want to get advice on your state’s requirements. In most states, the living will goes into effect when your primary care doctor says you are incapable of making your own decisions. Some states allow you to have a doctor’s order not to resuscitate (called a DNR or Do Not Resuscitate order) in case of an emergency. Emergency personnel in those states will follow the order and not resuscitate you if they are informed of it. In other states the emergency workers will always resuscitate, and your living will instructions apply only once you’ve reached a hospital.

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Durable Power of Attorney – Alternative to a Living Will

There’s also an alternative to a living will called a durable power of attorney (DPA) (also called a power of attorney for health care). Instead of giving instructions about your medical care if you become incapacitated, a DPA names a person you trust to make those decisions for you. One advantage of a DPA is that your representative can make medical decisions based on the most up-to-date treatment information. States have their own requirements for DPAs, including how they must be witnessed, who can witness them, and when they go into effect. (Usually when your doctor says you’re incapacitated.)

These documents aren’t exclusive and you can have both, if you want. In fact, that’s a very good idea. Some states, such as California, have already prepared a standard form that contains both a living will and a DPA. This allows you to state your wishes and decide who will make decisions about anything you haven’t covered in your living will, such as deciding on medication choices, surgery options, or choosing physicians or treatment facilities.