It’s tempting to put off creating a living will. Making a living a will requires thinking about the end of your life and sorting out how you feel about medical procedures you’d probably rather not think about too closely. Still, a living will is an important document to have at the ready, whether you expect to be incapacitated in the near future or simply want to set out your wishes for medical care, just in case.
What Is a Living Will?
When you look into living wills, you might feel like you’re wading into a sea of terminology. You might have heard terms such as “advance health care directive,” “health care power of attorney,” or “declaration,” in addition to “living will.” Are they the same? Not exactly. A living will (also called a “declaration” in some states) is a document that sets out your health care wishes, while a health care power of attorney is a document that names a trusted person to make medical decisions for you if you’re unable to do so.
To complicate matters, in some states, a living will and a health care power of attorney are combined into one document, which is often (but not always) called an “advance health care directive.” In other states, they are two separate documents. If you’re planning for incapacitation and live in a state where these documents are separated, you’ll likely want to complete both documents.
Considerations When Making a Living Will
When you write a living will or advance health care directive, you’ll need to make a number of decisions. Set aside some time to think over your wishes and perhaps discuss them with your doctor and loved ones. For example, you’ll likely need to think about:
- Who you will name as the primary physician—the person who will determine whether you have the mental capacity to make your own medical decisions. (If not, your living will or health care directive will be used.)
- Who you will name as your health care agent (also called a health care proxy, representative, or surrogate). While the health care agent will follow the wishes set out in your living will, having a representative in place allows for more flexibility, for example if there’s a scenario that’s not quite covered in your living will. (See “Who Should You Name as Your Health Care Agent,” below.)
- The policies of medical facilities you’re likely to use. (For example, Catholic hospitals and care facilities might have policies that require receiving artificially administered food and water when you’re close to death, even if your living will states otherwise.)
- Your actual wishes and stances on many health care and end-of-life procedures, including:
- Life-prolonging procedures when you’re close to death
- Withdrawal of artificially administered food and water if you’re comatose or close to death
- Palliative care or comfort care (which involves the treatment of pain at the end of your life)
- Location, or where you’d like to be, at the end of your life
- Organ or tissue donation
- Autopsies
You can also consider whether you’d prefer to simply have your health care agent make all of these decisions for you.
Who Should You Name as Your Health Care Agent?
Obviously, you should name someone you trust as your health care agent, but there are other factors to consider, too, such as whether they live close to you, and whether the person is assertive enough to enforce your wishes in the face of conflict. For more, read Choosing a Health Care Agent.
Some states also impose restrictions on who can serve as your agent. Some of the restrictions involve age, and some prevent your doctor or care provider from becoming your health care agent. Check your state’s restrictions on health care agents.
How to Make a Living Will
Making the sorts of decisions discussed above is the hardest part of creating a living will. The logistical part is actually fairly straightforward. Here’s how to write a living will.
Do You Need a Lawyer to Create a Living Will?
Most people don’t need a lawyer to create a living will unless they anticipate conflict or have a particularly complicated situation. But lawyers often include a living will or advance directive as part of a larger estate plan package. That said, free options like living will forms offered by your state or hospital are sometimes available—just make sure you find a form that is valid in your state, since state laws do vary. If you’re looking for a little more guidance, try WillMaker, which guides you step-by-step through the decisions you need to make, and then creates a living will or advance health care directive that expresses your wishes thoroughly and is valid in your state.
How Much Does a Living Will Cost?
As mentioned, you can sometimes find living will forms by checking with your state or hospital; these are free. If you use WillMaker, you can make an estate plan (with a will or living trust) that includes a living will or health care directive, for a one-time, relatively inexpensive amount. Using an attorney to make a living will costs substantially more. Our survey of readers reported an estate planning attorney’s average hourly rate as $250-$310. If you use an attorney to make an estate plan package, you can expect to pay anywhere from $500 to $3,000.
Steps for Creating and Storing a Living Will
Here’s how to set up and store a living will:
- Fill out a form or use a program like WillMaker to write your living will.
- Sign the document and have it witnessed or notarized, or both. Check your state’s legal requirements on finalizing a living will.
- Give copies of your living will to your health care agent, your doctors, and your hospital or care facility. Let your loved ones know where to find a copy, or give them a copy if you wish. If no one knows about your living will, it won’t be used.
When Does a Living Will Go Into Effect?
After signing and finalizing your living will or health care directive, you’ll continue to make your own health care decisions. While you're mentally capable of making these decisions, no one will use your living will or health care directive. However, when you become incapacitated—as determined by your doctor—the wishes set out in your living will take effect.
How to Update a Living Will or Health Care Directive
If you have changes to make to your living will or health care directive, the best practice is to make a new one entirely. Some circumstances might be good occasions for reevaluating your living will. For example, consider whether you need to update the document when:
- Your health care agent moves farther away, or your relationship with your agent changes. (Note that in many states, if you name a spouse as your health care agent and later get divorced, that designation is automatically revoked. But it’s best not to rely on state laws; make a new living will or health care directive to avoid ambiguity.)
- You’re diagnosed with a serious illness.
- Your health declines significantly.
- Some people also recommend reevaluating your living will every ten years or so, since your preferences on medical care and your relationship to death can change as you age.
How to Revoke a Living Will
If you want to cancel your living will, how to go about it will depend on your state’s laws. But generally, it’s best to be as clear as possible about your intentions. For example, if you’re making a new living will to replace your old one, the new document should include a statement that you’re revoking all prior living wills. Once you’ve made a new living will and revoked your old one, provide copies to your health care agent, doctors, hospitals and care facilities, and loved ones, and instruct them to destroy the old copies.