Colin Wong
A living Will records your medical wishes if you cannot speak for yourself. Learn how it differs from a last Will and what documents you may need.
When most people think about writing a Will, what they’re actually picturing is the document that’s formally known as ‘a last Will and testament’. It’s where you list who receives your money and belongings after you die.
But what many people don’t know is that there is another document that’s just as important. It’s called a ‘living Will’ and is something completely different.
A living Will is a document that records the medical and healthcare treatment you want and don’t want if you ever become unable to communicate. It’s valid while you are alive and doctors and your family use it as a guide when you cannot tell them what you want yourself.
The names of these two documents sound similar, which is why so many people mix them up. So we’ve broken it down for you, first in the table below which shows the difference at a glance and then the rest of this article walks you through the other terms you need to know, and how to get your living Will sorted.
Ready?
Let’s go.
Living Will | Last Will and Testament | |
|---|---|---|
Main Purpose | Records your preferences for medical and health care | Directs how your money and belongings are handled and divided up |
When it comes into effect | During your life, when you cannot communicate or make decisions as defined by your state's law | After you die |
Typical contents | Your wishes about life-sustaining treatment, healthcare and comfort care | Your wishes about beneficiaries, your executor, the guardians for children, how assets are divided and any gifts to charities or causes |
People involved | Your health care team, and someone you have named to speak for you | Your executor, your beneficiaries and the probate court |
State variation | Forms, wording and signing rules vary by state | Signing and probate rules vary by state |
Where EveryWill fits | EveryWill does not create this document | EveryWill helps you create a free last Will online. |
Many people choose to have both. One covers your health care wishes while you are alive and the other covers what happens to your estate once you are gone. Having one of them does not cover you for the other.
What is a living Will? The details
A living Will is simply a health and medical care planning document. You write it while you are well, so that your wishes are on the record for a time when you might be too sick or too injured to explain them.
In most states, a living Will only takes effect once you can no longer communicate or make your own medical decisions. That is decided by your state’s law and your doctors’ assessment. If you can still speak for yourself, then it’s not needed.
The treatments people usually address in a living Will include:
CPR, if your heart stops
A ventilator or breathing machine
Artificial nutrition and hydration, sometimes called tube feeding
Dialysis
Antibiotics or antiviral medicine
Comfort care, sometimes called palliative care, which focuses on managing pain and keeping you comfortable
You can agree to some of these and turn down others. You can also add context about why you chose yes or no, so the people making decisions on your behalf have a sense of your values and not just a list of ticked boxes.
A living Will does not say who gets your house, and does not name an executor or a guardian for your children, all of that belongs in a last Will and testament.
Living Will, an Advance Directive and a Health Care Proxy: what they mean
These three terms turn up together constantly, and knowing the difference between them is important.
Planning your medical and health care comes down to two things - writing down what you want, and choosing someone to speak for you if you cannot speak for yourself.
Living Will. This handles the first job. It is the written record of the medical and health care treatment you want, and the treatment you would turn down.
Health care proxy. This handles the second job. It is a form where you name a person to make medical decisions for you when you are unable to make them yourself. The person you choose might be called your agent or your surrogate, and in some states the form itself is called a health care power of attorney.
Advance directive. This is the umbrella word for this kind of paperwork. Both of the forms above are advance directives, which is why the terms get muddled so often.
One thing that surprises people is that a living Will does not put anyone in charge. It records your wishes and stops there. Naming someone is separate, so most people end up doing both, which leaves their wishes in writing and gives them a real person who can apply those wishes to whatever situation comes up.
How your state handles the paperwork varies. Some issue two separate forms, and some combine both into one document.
What about a DNR or a POLST?
These work differently. They are medical orders written by a doctor and kept with your medical records.
DNR. Short for Do Not Resuscitate. It tells hospital staff not to attempt CPR if your heart fails.
POLST or MOLST. Short for Physician (Provider or Practitioner) Orders for Life-Sustaining Treatment or Medical Orders for Life-Sustaining Treatment. Different states use these different terms. They are a broader set of orders about life-sustaining treatment, usually for people who are already seriously ill.
The short version is that a living Will is your document, and these orders belong to your doctor and your health care providers. Some states group DNR and POLST orders with advance directives, so check the terms your state uses.
Who should consider a living Will?
In most states, any adult who is sound of mind can make one. Check what your state requires. This is not a document only for the elderly, it’s for everyone above 18 years old.
A few life moments tend to prompt people to write one:
After a new diagnosis, especially anything serious or progressive
Before a planned surgery or a hospital stay
When you are caring for a parent or partner and going through the process with them
Before a long trip, or after moving to another state
Turning 18, or reaching any age where a parent no longer has an automatic say in your care
Health can change at any age, which is why some people write one early. The best way to think of a living Will is as a favor you do for the people who love you. Without it, your family may be asked to make very hard decisions with nothing to guide them. With it, they get to follow your lead and fulfill your wishes.
How to create and maintain a living Will
The process is more manageable than many expect. Most people can complete a living Will themselves. For anything complicated, talk to a licensed attorney in your state.
Find the right form for your state. Requirements differ, so a generic form may not do the job where you live. [SOURCE NEEDED: confirm which US bodies publish state-specific advance directive forms, then name and link them.]
Think through what you actually want. A conversation with your doctor helps here. They can explain what particular treatments involve and what the likely outcomes look like in different situations.
Choose your health care proxy and talk to them. Many people pick someone who stays calm under pressure and who will follow their wishes, even if that person would choose differently. Tell them what you want before they ever need to act on it.
Sign it according to the requirements of your state. Some states ask for witnesses, some ask for notarization, and some accept either. Getting this step right is what makes the document usable.
Hand out copies. Give one to your proxy, one to close family, and one to your doctor for your medical record. A document nobody can find is not much use, so keep your own copy somewhere accessible and tell people where it is.
Review it every so often. Look at it again after a diagnosis, a big change in your health, a move to a new state, or a change in how you feel about any of it. You can update or replace a living Will at any time while you have capacity.
How a living Will fits with the rest of your estate plan
There are a handful of documents that do different jobs, and together they make up an estate plan.
A living Will handles medical decisions while you are alive. A last Will and testament deals with your assets, your executor, guardians for your children and any gifts you want to leave. A power of attorney lets someone manage your money and property if you cannot.
If your health care wishes are already written down, the last Will is the piece to tackle next. It is the document that decides who inherits what. If you do not have one, your state’s rules make that call instead of you.
That part is free with EveryWill because we partner with many charities who cover the cost. You can do it online in one sitting. When you get to the end, you can choose to leave a gift to a charity you care about if it feels right, which is simply one more instruction in your Will. Some people leave a gift and some people skip it completely. That choice is up to you.
Frequently asked questions
What is a living Will in simple terms?
It is a written record of the medical care you want, and the care you would turn down, if you ever cannot speak for yourself.
Is a living Will the same as a last Will and testament?
No. A living Will covers medical and health decisions while you are alive. A last Will and testament covers your money and belongings after you die.
What is the difference between a living Will and an advance directive?
Advance directive is the broad term for documents that set out your health care wishes in advance, including naming your proxy. A living Will is one kind of advance directive.
Do I need both a living Will and a health care proxy?
Many people choose to have both. A living Will records your instructions, and a proxy is a real person who can apply them and advocate for you. Some state forms combine the two.
What decisions can I put in a living Will?
Usually your wishes about CPR, breathing machines, tube feeding, dialysis, medication and comfort care. You can also explain the reasons behind your choices.
Does a living Will expire or need to be updated?
In most states it stays valid until you change or revoke it. [SOURCE NEEDED: named current US source, or cut this sentence.] Reviewing it every few years is a good habit, and it is worth doing after a health change or a move to another state.
A living Will covers your medical and health care wishes. A last Will covers what happens to your estate.
Taking the next step
You can create or update your last Will online with EveryWill, and it costs you nothing. Charities cover the cost, and you can choose to leave a gift to one if it feels right.
The information provided in this article is for general informational purposes only and does not constitute legal advice. Laws vary by state. For advice specific to your situation, please consult a licensed attorney in your state.
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