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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Termination

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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References

Related articles

The Responsibilities of Medical Durable Power of Attorney for the Elderly

If a person becomes incapacitated, perhaps because of a mental illness like dementia, he can no longer make health care decisions for himself as he once did. If he created a durable medical power of attorney, he named an agent to make his health care decisions if and when he becomes unable to do so and this agent is responsible for following his wishes closely and acting in his best interests.

Statutory Will V. Living Will

A will is a declaration of how you want your assets distributed following your death. A statutory will is a simple type of will legally recognized by only a handful of states. A living will provides directions for carrying out your wishes regarding your health care if you become incapacitated and cannot make decisions for yourself. A regular will and a living will can work together as part of an overall estate plan.

How to Supersede a Medical Power of Attorney

A power of attorney, or POA, for medical purposes allows you to authorize a friend or relative to make medical decisions for you if you become incapacitated. The health care instructions themselves are detailed in a living will, which specifies what treatments you do or do not want. The person who holds the medical POA, called the agent, is required to act in good faith when carrying out your wishes. For example, if you want to be taken off life support machines at the end of life, a statement to that effect in a living will requires your agent and health care professionals to honor those directives in almost all circumstances. However, the medical POA can be superseded and the power of your agent overridden in a few situations.

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