The Revocation of a Living Will

by John Stevens

A living will is a legal document that allows a person to specify their instructions regarding end-of-life treatments, such as life support, kidney dialysis and CPR. The primary benefit of a living will is to avoid the necessity of court involvement, but a living will can also remove the burden otherwise imposed on family members who might be unclear as to your wishes. A living will can be revoked, but it is a good idea to create a new one shortly thereafter.

Sound Mind as a Requirement

You can only revoke your living will if you are of sound mind, a concept sometimes referred to as “legal capacity.” Although states have different standards for determining whether a person is of sound mind, capacity laws are designed to ensure the person understands the consequences of what he or she is doing. Challenges to the legal enforceability of living wills are often based on a claim that the person who drafted it did not have capacity to either create or revoke a living will. If you are concerned your revocation might be challenged on this ground, you should consider first having your primary care physician write a letter stating you have capacity to do so.

The Revocation Process

Although you can revoke your living will by telling the people named as your agents in the will that it is no longer effective, a revocation should be in writing. The danger in revoking a living will orally is proving you did so if the revocation is challenged. The revocation document should refer to the living will and clearly state you are revoking it. To guard against a claim your signature is forged, you should sign the revocation document in front of a notary public. Some states require witnesses to watch you sign your revocation document. To prevent someone from using your revoked living will, you should also destroy all copies of it.

Notifying Interested Persons

Although you may have revoked your living will, it is important to notify anyone who may assume your living will is still in effect. If you have given your primary physician a copy of your living will, or told your doctor you have one, you should immediately notify your physician that your living will is no longer in effect. You should notify your doctor of this in writing so that your letter can be added to your medical records. You should also notify the persons you named in your living will to act on your behalf, called your agents, of the revocation.

The Importance of Creating a New Living Will

It is important to keep in mind that after revoking your living will, the persons named in it no longer have the authority to act on your behalf to make healthcare decisions for you. If your family members disagree as to how your medical affairs should be handled, a judge may have to decide for you. To avoid this possibility, you should consider signing a new living will document as soon as you revoke your old one. You can even prepare your new living will before you revoke your existing will and then sign the new document before a notary -- and witnesses, if required in your state -- immediately after revoking your old one. You should give your primary care physician and the persons you named as your agents in the new living will copies of the document.