Is a Living Will Valid After Death?

By Heather Frances J.D.

When you become unable to make your own medical decisions, someone else must make those decisions for you. A living will communicates your wishes to medical providers and trusted friends and family when you can’t. Since a living will does not provide directions for what happens after a patient dies, it is not valid after death.

Living Will Document

A living will provides directions to a patient’s physicians and loved ones regarding the patient’s preferences for end-of-life care. Living wills typically set out your preferences regarding treatments that prolong life, such as artificial nutrition, hydration and respiration. The document can either authorize such treatments or prohibit physicians from using them in specific circumstances. Each state has guidelines that living wills must follow to be valid.

When Living Wills Apply

The directives you provide in your living will become effective when you are no longer able to understand or communicate your wishes about medical treatment. A patient with advanced Alzheimer’s disease may be incapacitated to the extent that he cannot fully understand his medical treatment and so cannot participate in making decisions about his medical care. Similarly, a patient in a coma or vegetative state cannot physically communicate with his doctors, so the living will document speaks for him.

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Living wills are only applicable during the patient’s life. The document terminates at death because it can only address issues that occur during a patient’s life, similar to durable powers of attorney for health care. Durable powers of attorney designate a health care agent to make medical decisions on the patient’s behalf and are often created to work together with the patient’s living will. Because no medical decisions are left to be made once the patient dies, neither document serves any purpose after death.

Last Will and Testament

A will, also called a last will and testament, is a completely different document than a living will, but the two are often confused. A last will takes effect only after a person dies and directs distribution of the deceased person’s estate rather than his medical care during his life. A will can also nominate a guardian for the deceased person’s children and a person to manage his estate prior to distribution, called an executor or personal representative.

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Does a Living Will Expire?


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Living Will Requirements in Michigan

In Michigan, a living will is one of three types of advance directives; the other two types are a durable power of attorney and a do-not-resuscitate order. An advanced directive is a document signed by an individual that specifies what type of medical care he wants in the future, or who he wants to make decisions for him if he loses the ability to make his own decisions. The Michigan legislature has not given any legal force to the living will in Michigan, although 47 other states have done so.

Standard Will Vs. Living Will

Planning your estate may involve creating several documents to address your end-of-life care before you die and your property after you die. Two of these documents may be a will and living will. A will directs the distribution of your assets after you die and a living will directs your health care while you are alive.

Can the Next of Kin Overrule a Living Will?

When you can’t make health care decisions for yourself, your next of kin can step in to make those decisions for you. However, while you are still capable of making decisions, you can create a living will to document your health care wishes. When your documented wishes conflict with what your family wants, your physicians are supposed to follow the terms of your living will.

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