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Legal Requirements of a Living Will

A living will is also known as a medical directive. The living will informs a person's family and physicians of the type of medical treatment he wants to receive if he is incapacitated or grappling with a terminal illness. The legal requirements for a living will vary per state, but many states adopted provisions of the Uniform Health Care Decisions Act. An estate-planning attorney can assist with the creation of a valid living will.

  1. Purpose of a Living Will

    • Living wills state whether a person wants to incorporate life-prolonging medical procedures into his health care treatment. The living will also states the medical conditions under which the provisions of the living will become effective. People create living wills to clearly state their intent regarding the type of medical treatment they want to receive. Physicians and family members reference the living will when the patient is permanently incapacitated and unable to make decisions regarding his medical care. An attorney can advise a person how to properly create a living will based on the resident state's laws. An experienced attorney can also ensure the language used in the living will explicitly expresses the person's wishes to prevent possible confusion or misinterpretation of the person's intent.

    Content of Living Will

    • The person creating the living will is known as the declarant. The declarant must be of sound mind and at least 18 years old when creating the living will. According to Section 2 of the Uniform Health Care Decisions Act, the living will can be oral or written. Reference the state's laws to confirm if the living will must be in writing or if it can be oral as well. The living will should specifically state the type of medical treatments the declarant wants to receive if he is in a state of permanent unconsciousness. The legal document also designates a person with the authority to make sure the appropriate medical procedures are executed according to the terms provided in the living will. That person may be referred to as the health care power of attorney or agent.

    Witnesses

    • The declarant needs to sign and date the living will once the document has been completed. Review the statutes within the state to determine if the living will must be signed in the presence of witnesses. Signing the living will in front of two witnesses who are at least 18 years old and of sound mind is a standard requirement for many states. There are other conditions that the witnesses may need to satisfy to be considered qualified witnesses, depending on the state's statutes. Some states may also require the living will be notarized by a certified notary public. Even if the statutes do not require the living will be notarized, having it notarized can be a safeguard in case the validity of the document is contested at a later date.

    Notify Interested Parties

    • Provide a signed copy of the living will to the primary physician and to the person with power of attorney authority. If an attorney was retained to draft the living will, he will keep a copy of the document as well. Discussing the instructions in the living will with relatives, the physician and the power-of-attorney agent is another way for the declarant to ensure all interested parties are aware of his wishes regarding his medical care.

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