A living will is a legal document that says which kinds of life-support and pain-management care a person does or does not want. Doctors use it as a guide when their patient has lost the ability to say for themselves what kind of treatment they want. This article explains when the living will takes effect and what the differences are between a living will and other documents that are related or sound similar. It also explains why making a living will is important, when a person should do so, and when they might not want to make one.
What is a living will?
A living will is a legal document that states a person’s wishes about what types of care they do or do not want to keep them alive and to manage their pain. It applies to people in two specific situations:
- The person is in the last stages of a life-ending illness
- The person is permanently unconscious, such as in a coma
In a living will, a person can state preferences such as not wanting to be put on a ventilator, receive blood transfusions, or be given heavy pain-killing drugs. On the other hand, a person could say that they want doctors to use all possible treatments to try to keep them alive.
A living will often also state the person’s wishes about organ donation.
The living will acts as a guide for doctors and other health-care providers when the person is no longer able to communicate their own decisions. It gives doctors and health-care providers both the legal ability and the legal obligation to give or withhold treatments as described in the living will.
When does a living will take effect?
A living will only takes over when a person is still alive but unable to communicate their wishes. Up to that point, doctors and health-care providers will take instructions from the person directly.
A doctor will assess when the living will takes effect. For instance, a person may have been very weak but able to communicate for several days, and then slip into a coma one morning. This is when the doctor will begin taking direction from the living will.
What is the difference between a living will, a regular will, and a living trust?
Regular wills and living trusts both state how a person wants their money, belongings, and other assets distributed. They do not address medical issues.
A living will, on the other hand, does not say anything about a person’s belongings. It is a document about medical care. It is often considered a type of advance directive—a document that directs doctors and other health-care providers about medical treatment.
What is the difference between a living will and a Do Not Resuscitate (DNR) or Do Not Intubate (DNI) order?
A living will is a legal document, and it covers many kinds of treatment. It may mention whether a person wants to be resuscitated or intubated in certain situations, but it is only used by the person’s medical team and may not be used by first responders.
DNR and DNI orders are medical documents that only cover the very specific topic of whether the person wants to be revived or intubated. A doctor provides and signs the DNR or DNI order and places it in their patient’s medical file, after discussing preferences with the patient or their medical proxy. DNR or DNI orders may be used by first responders who need to know whether to try to revive the person if their heart or breathing has stopped.
What happens if a person does not have a living will?
When a person without a living will becomes unable to communicate their wishes about medical treatment for themselves, and that person also has not given any one medical power of attorney or other advance directives, doctors in most states will follow family consent laws.
Family consent laws require the doctor to ask the people with the closest relationship to their patient what the patient’s wishes might be. They start with the spouse or registered domestic partner, and then they will move on to the children. (Note that most states do not give unmarried, unregistered partners top-priority say in these situations.)
However, different family members might have very different ideas about what their loved one wants, which can cause tension, conflict, and emotional distress for the family members. This is why a living will and other advance directives are so important.
When should a person make a living will?
Some experts believe that all adults should make a living will, even if they are still young and healthy. This is because any serious accident or unexpected severe illness, such as COVID-19, can take away a person’s ability to communicate their wishes for end-of-life treatment.
In many states, a lawyer is not needed and the living will does not need to be notarized by a legal official. A person can write or type the living will and then find two witnesses to sign it. These witnesses usually need to be people with no stake in the person’s treatment decisions; in most states, family members and medical-team members cannot act as witnesses.
A living will can generally be changed simply by writing a new one, getting the required signatures on it, and discarding the old one. However, the rules and forms for creating and changing a living will vary from state to state.
A living will should be reviewed every two or three years to make sure that it still reflects a person’s wishes. They should also check that it lines up with what they have stated in their other advance directives.
When should a person consider not making a living will?
It is important to know that the decisions stated in a living will override decisions made by a medical power of attorney. This means that if a spouse or family member with medical power of attorney believes that the incapacitated person would want a certain treatment, but the living will says not to perform it, doctors must follow the living will.
For this reason, if a person wants the individual with medical power of attorney to keep being able to make decisions on their behalf, they may not want to make a living will.
In addition, a living will usually does not allow for time limits. If a person wants a certain amount of time for a treatment to work, for example, they may be better off only giving someone medical power of attorney rather than having a living will.
Decisions related to aging and the end of life
Do Not Resuscitate and Do Not Intubate orders
Overview of legal documents
Overview of health care documents
Portable medical orders (POLST)
External supporting content