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Living Will Form (Advance Medical Directive)
Living Will Form (Advance Medical Directive)
How To Create a Living Will aka Advance Medical Directive
Step-By-Step Instructions With State Links
1: Nature of a "Living Will"
What is a "Living Will" also known as an "Advance Medical Directive"? It is a document whereby an individual sets forth his or wishes in case of terminal illness or persistent unconsciousness where the individual, also, is no longer capable of participating in his or her health care decisions. The authorization of Living Wills by state legislatures is a direct response to the Supreme Court's decision in Cruzan v. Commissioner, Missouri Department of Health, 497 U.S. 261 (1990). In the Cruzan case, Nancy Cruzan, who was in a persistent vegetative state, was kept alive against the wishes of her family for many years. At the time, there was no mechanism in the law allowing an individual to declare, in advance of physical or mental incompetence, his or her wishes in cases of terminal illness or a persistent vegetative state. Click here for article on the Terri Schiavo case.
The essence of a Living Will or Advance Medical Directive is the making of the following (or a similar) statement by the declarant:
If I should have an incurable or irreversible condition that will result either in death within a relatively short period of time or a state of permanent unconsciousness from which, to a reasonable degree of medical certainty, there can be no recovery, it is my desire that my life not be prolonged by the administration of life-sustaining procedures. If I am unable to participate in my health care decisions, I direct my attending physician to withhold or withdraw life-sustaining procedures that merely prolong the dying process and are not necessary to my comfort or freedom from pain.
Iowa Code Section 144A.3.5
"Life-sustaining procedures". Most living will forms ask the maker to declare his or her intension whether or not to withhold each of a list of "life-sustaining procedures" under circumstances of terminal illness or persistent unconsciousness. The following is a typical list of procedures:
Artificially supplied food or hydration;
Surgery;
Heart-lung resuscitation (CPR);
Antibiotics;
Kidney dialysis; and
Chemotherapy.
What is the difference between a Living Will and a Medical Power of Attorney? Living Wills and Medical Powers of Attorney serve different but complimentary purposes. A Living Will sets forth the declarant's intentions in case of terminal illness or persistent unconsciousness. A Medical Power of Attorney authorizes an agent to make health care decisions for the declarant when he or she is no longer capable of making them. Most states allow for a Living Will and a Medical Power of Attorney to be combined into one document.
2: What are the requirements for making a Living Will?
Required elements for creation of a Living Will. The following are, generally, are the elements for a Living Will under state law. We invite you to click on the link for your state on this page for specific information regarding the requirements for Living Wills in your state.
The declaration must be in writing;
Signed by the declarant or by another at the declarant's direction; and
Signature of declarant witnessed by two individuals who are over 18 years of age.
2: What are the requirements for making a Living Will? (Continued)--
Witnesses. There is variation from state to state regarding who may serve as a witness to a Living Will. We suggest you click on the link to your state above for further information. For an example, below is the California statute setting forth the rules on who can be a witness to an Advance Medical Directive in that state:
The witnesses shall be adults.
Each witness signing the advance directive shall witness either the signing of the advance directive by the patient or the patient's acknowledgment of the signature or the advance directive.
None of the following persons may act as a witness:
(1) The patient's health care provider or an employee of the patient's health care provider. (2) The operator or an employee of a community care facility.
(3) The operator or an employee of a residential care facility for the elderly.
(4) The agent, where the advance directive is a power of attorney for health care. * * *
At least one of the witnesses shall be an individual who is neither related to the patient by blood, marriage, or adoption, nor entitled to any portion of the patient's estate upon the patient's death under a will existing when the advance directive is executed or by operation of law then existing.
California Probate Code, Section 4674. Note to residents of Nebraska: Nebraska is the only state that has not adopted a version of the Uniform Health-Care Decisions Act set forth the requirements for a Living Will. Nebraska does have a law allowing for creation of a Medical Power of Attorney Power of Attorney that can be activated under the same circumstances as a Living Will; however, it is a different document with different purposes. It is highly recommended that you do not attempt to use Living Will forms found publicly that were created for use in states other than Nebraska. MedLawPlus.comŽ does not have an online Living Will form designed for use in the state of Nebraska.
DISCLAIMER
The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This service is not a substitute for the advice of an attorney and we encourage users to have all documents created on our site reviewed by an attorney. No attorney-client relationship is established by use of our online legal forms system and the user is not to rely upon any information found anywhere on our site. THESE FORMS ARE SOLD ON AN "AS IS" BASIS WITH NO WARRANTIES OR GUARANTIES. If you wish personal assistance in deciding whether the document found on our site is right for you or desire representations and warranties upon the legality of the document you are purchasing in the jurisdiction you will be using it, contact an attorney licensed to practice law in your state.
