Are Living Wills Binding Documents?

When a living will is made in compliance with state law, it generally becomes legally binding. Although state laws vary, living wills generally include provisions related to end-of-life care and require the maker's and witnesses' signatures to make them legally binding. Some states require witnesses and a notary. You can use a template to make a living will, provided it is in compliance with your state's laws. Living will forms vary from state to state because each state has specific requirements. It is advisable to consult an attorney in your state to ensure your living will conforms to state law.

Compared to regular wills, living wills are relatively new. An attorney named Luis Kutner is credited with creating the first living will in 1967. In 1990, the Supreme Court decided a case involving an individual's right to refuse life-sustaining medical treatment with the Court declaring that a competent person has the right to refuse medical treatment. Since that time, state legislatures have continued to draft statutes that set forth the requirements necessary to make a living will valid and legally binding. Moreover, every state in the United States has now passed living will legislation.

Living wills are uniform in that they contain provisions regarding life-sustaining medical procedures. For example, living wills typically contain clauses describing whether the maker wishes to receive artificial hydration, nutrition or respiration in the event he becomes terminally ill or enters a persistent vegetative state, such as an irreversible coma. A living will maker can explain his wishes to receive every possible life-sustaining procedure available as well. In this sense, living wills are flexible in that they may tell physicians to withhold commonly administered life-sustaining treatments or direct physicians to use "heroic efforts" to prolong life. A living will goes into effect when you are very ill and are not able to communicate your wishes yourself; this is referred to as incapacity or a lack of capacity. Two physicians must certify that you have a terminal condition or are in a persistent vegetative state.

Living wills must adhere to statutory requirements -- such as the requirement for the maker's signature -- to be legally binding. Likewise, witness signatures are typically required by statute. Some states require one witness, while others require two. Unlike regular wills, the requirements for a living will aren't as steeped in formalities. However, common statutory requirements include mental competency of the maker and witnesses. Furthermore, it is common to require "disinterested" witnesses, or witnesses who don't stand to inherit from the maker's will. Although some states don't require notarization of living wills, others do; a notary serves to authenticate the document. In states that don't impose a notary requirement, a living will is legally binding without notarization, provided it complies with the state's other statutory requirements.

Some states -- Illinois and Indiana, for example -- impose civil liability or make it a felony for a person to have intentionally destroyed another person's living will. Compared to other documents with legal effect, such as regular wills and contracts, living wills don't have a long history of case precedent. However, Texas changed its living will statute in response to a case involving paramedics who stopped emergency care due to the patient's living will. Texas's new law states that paramedics are not legally required to review or honor a patient's living will, meaning they are not liable if they administer emergency care that doesn't conform to a patient's living will.

A living will doesn't do much good if it's not distributed to health care providers. It's also a good idea for living will makers to discuss preferences regarding end-of-life care with family members and provide copies of the living will to loved ones. Living wills may be filed with the U.S. Living Will Registry, which maintains a database that's accessible to health care providers. The general consensus is that a living will made in one state is likely to be binding in another, as long as it complies with another state's statutory requirements.

Read More: Statutory Will V. Living Will