Regulations and Limitations on a Living Will

by John Cromwell

A living will is a statement of intent in which the drafter declares how he wants to be treated medically, in case of a long terminal illness or accident. These declarations are meant to be used if the drafter becomes unable to communicate or make medical decisions. Living wills are regulated at the state level so standards vary. However, there are some consistent general principles that all states have adopted. It is strongly recommended that you consider using an online third-party legal document provider, a living will form provided by your state, or a local licensed attorney when preparing your living will.

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Capacity to Draft

For a living will to be binding, the person drafting it must be the age of majority or a legally emancipated minor. The age of majority varies by state, but is generally 18. The person drafting a living will must also be of “sound mind.” Sound mind means the person has the ability to reason and exercise judgment based on his own circumstances. The law generally assumes that everyone who has reached majority is of sound mind. If you wish to challenge a living will because the drafter lacked capacity, you are required to substantiate that with explicit proof, such as a doctor’s report.

Drafting a Living Will

While many people assume that a living will is only used to limit the medical care a person receives, it can be used for a variety of other purposes. A living will can request that all possible medical options are exhausted or specifically exclude certain procedures from use, such as tube feeding or resuscitation. You can also use a living will to specify if you want to donate your organs. You should discuss your medical options with your doctor. The living will should clearly express that you are entering into it of your own free will and how you want to be medically treated. The state where you live may require specific terms when expressing your wishes, such as “withdrawal of life support.” Check your state laws for specific requirements.

Signature

You must sign the living will for it to be valid, regardless of where you live. However, states differ on witnessing requirements. Some states require that a living will be signed by two witnesses willing to testify that the document represents your medical wishes. Other states require that the will be notarized. Others require that the will be notarized and witnessed while others do not require a notary or witnesses.

Revoking a Living Will

You generally can revoke your living will in one of three ways. The first is to destroy the physical living will document. The second way is to submit a signed, written notice to your doctor that you are revoking your living will. The third way is to tell someone, over 18, that you are revoking your living will and have him record the revocation and sign it. The witness then must deliver the revocation to your doctor.