How to Write a Living Will
UPDATED: December 17, 2019
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A living will is a legally binding document instructing your family and physicians regarding your medical wishes in case of incapacitation. living wills have especially come to the public’s attention following the Terry Schiavo case where the decision to end life became a public spectacle instead of remaining a private family matter. In order to ensure your wishes are honored, a living will must contain specific provisions and clearly communicate your wishes.The top of the living will document must say, “Living Will Declaration of (your name).” Be as straightforward as possible; remember that precision is the key to validity in the legal field.
Sound Mind Declaration
In order for the document to be considered valid, you must have created it voluntarily and while you were able to do so. In order to make the living will self-proving in this regard (self-proving means the court will automatically accept it as true), you must place a provision into the living will document that states you are of sound mind. An example of this would be:
“To my family, doctors, hospitals, surgeons, medical care providers, and all others concerned with my care:
I, (your name), being of sound mind and rational thought, willfully and voluntarily make this declaration to be followed if I become incompetent or incapacitated to the extent that I am unable to communicate my wishes, desires and preferences on my own. This declaration reflects my firm, informed, and settled commitment to refuse life-sustaining medical care and treatment under the circumstances that are indicated below. This declaration and the following directions are an expression of my legal right to refuse medical care and treatment. I expect and trust the above-mentioned parties to regard themselves as legally and morally bound to act in accordance with my wishes, desires, and preferences. The above-mentioned parties are therefore free from any legal liabilities for having followed this declaration and the directions that it contains.”
The next section of the living will should detail the exact directions you wish to give your doctor and family in the event of your incapacitation. There should be four areas covered in this section:
- State whether or not you wish for doctors to withhold life-sustaining measures if there is no hope for your recovery.
- State whether or not you wish for doctors to withhold pain medications.
- List specifically which forms of medical treatment you do not want. For example, if your heart stops, you do not wish to be resuscitated using paddles.
- List specifically which forms of treatment you do want the doctors to perform. For example, if open-heart surgery will most likely save your life, would you want the doctor to perform the surgery.
Similar to the opening statement of your living will, the closing statement must be worded in a precise way to ensure your intentions are clearly understood. An example of this provision would be:
“This living will Declaration expresses my firm wishes, desires, and preferences. The fact that I may have executed any other forms in the past or future, as specified by the laws of the State of (list your state), may not be used to limit or contradict this living will Declaration, which is an expression of both my common law and constitutional rights.”
Sign and date the declaration after the statement.
Witnesses and Notary
Most states require both the signature of two witnesses and a notary to consider the living will valid. Just like with a standard will, the witnesses to a living will must sign to a specific statement:
“I declare that the person who signed or acknowledged this document is personally known to me, that he/she signed or acknowledged this living will Declaration in my presence, and that he/she appears to be of sound mind and under no duress, fraud, or undue influence.”
Many states may also require that the witnesses are sworn to the truth of this statement before signing.
A living will is a very complex legal document. In fact, many lawyers have over ten pages of packet information that they ask clients to fill out regarding every possible medical treatment and condition. If you are interested in creating a living will, contact an estate planning attorney in your area for a consultation.