Are Living Wills Able to Stand Up in Court?

By Cindy DeRuyter, J.D.

Are Living Wills Able to Stand Up in Court?

By Cindy DeRuyter, J.D.

When you sign a living will, also referred to as a declaration regarding life-prolonging procedures, healthcare power of attorney, or advance healthcare directive, the document formally records your wishes for medical care, nominates an agent to make decisions for you, or both.

Three people at table going through forms

State law governs and authorizes these types of medical directives, so a living will or other directive prepared and executed in compliance with your state's laws should withstand challenges in court.

Reasons to Create a Living Will

Creating a living will or similar advance directive can provide you and your loved ones with valuable peace of mind.

If you were to become incapacitated or incompetent and did not have a valid healthcare directive or living will in place, your loved ones might not have any idea how to proceed. Without a directive in place, they might experience additional stress and heartache, agonizing over decisions because they don't know if what they choose is what you would have wanted. Additionally, a judge could end up being the determining factor if there are disagreements between family members and a healthcare power of attorney when there is no living will.

Your advance directive provides guidance and direction, making the decision-making process easier if or when you reach a point where you can no longer make your own decisions.

Understanding Your State's Legal Requirements

If you want to ensure that your living will can withstand challenges in court, you should make sure that the document complies with your state's legal standards for execution and content.

Legal Capacity

First, a person signing an advance medical directive must have the legal capacity to do so. This means you must be at least 18 years old and have the mental capacity to understand what you sign, as well as the implications of signing it.

Complying with State Law

The next potential hurdle is making sure that the decisions documented in the living will do not violate your state's laws. For example, in states where assisted suicide is not legal, state law may specifically say that provisions in an advance medical directive requesting assisted suicide are invalid.

States also have specific laws that address whom you can name as your healthcare agent or healthcare power of attorney. Some statutes clearly state that a doctor or other medical professional can only be a healthcare agent if there is a close personal relationship in place.

Proper Execution

It is also critical to make sure that when you sign the healthcare directive or living will, you observe the formalities required by your state's statutes. Some states require a notarized signature. Other states require one or two witnesses to attest that they watched you sign. Still, others require signatures from one or two witnesses and a notary public. In this case, you cannot name the witnesses or the notary public as your healthcare agent or alternate agent.

If you move from one state to another, you might want to create a new living will that complies with your new state's laws. Doing so can help protect against potential future legal challenges to your advance medical directive. Make sure you follow all of the necessary steps and your state's specific laws closely to avoid any complications.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.