Living Wills FAQ

By Bradley B. Wrightsel

What exactly is a living will?

More and more people are deciding to have Advance Directive forms signed. Advance Directives may include living wills, durable health care powers of attorney, and anatomical gift forms. A living will declaration is a document used specifically for end of life decisions. It permits persons to express, in advance, their wishes with respect to life-sustaining treatment in the event that they are permanently unconscious or terminally ill. It is authorized by state statute. There is a prototype living will form. This form is to be used to express your desires regarding the limitation of life-sustaining treatment; however, if a person does not want to limit life-sustaining treatment, he/she can express his/her desires as well.

At what age should I have a living will?

Ohio law permits any person who is 18 years of age and of sound mind to sign a living will. Unfortunately, it often takes a publicized event like the Terri Schiavo case or a family illness to remind people of the importance of these decisions. Since an accident or illness can occur at any age, persons should execute this document as soon as they have contemplated their wishes concerning end of life decisions. Keep in mind that the document can always be changed or revoked.

Do I need an attorney to draft a living will?

Living wills are now very common documents. Most people will have a living will completed by their attorney at the time they complete their estate plans. Often, that is the ideal time to have the document executed. A person does not need to have an attorney to complete his/her Advance Directives. The current prototype living will form is fairly easy to complete, but there are concerns with a person not fully understanding the content. Our clients typically have a few questions during the process of completing and executing the document. Also, the living will declaration is a legal document, and as such, needs to be properly executed. There are limitations as to who can witness the document.

Is a living will a good substitute for a medical power of attorney or other related documents?

A durable health care power of attorney is a different legal document. It authorizes another person to make medical and placement decisions for you if you are unable. The authority granted is more broad than that granted in a living will. Therefore, a living will is not a substitute for a health care power of attorney, and I recommend that a person have both.

Are there any unique considerations regarding living wills in Ohio?

Yes, the living will is authorized by statute and the laws of the various states regarding living wills may be very different. A fairly recent change to living will declarations in Ohio is the addition of the anatomical gift option. While it may also be the case in other states, public policy prevents the person whom you designate to make decisions to withdraw medication and/or treatment that provides you comfort or alleviates pain. There are also limitations regarding living will decisions affecting a pregnant woman.

I have a living will that was drafted in another state/country. Is it valid in Ohio?

Probably, but one should be aware that each state has different laws. For example, I had a client come in to update her legal documents, which she had executed when she lived in California. In reviewing her living will, I noticed that it specifically stated that it expired after a period of time (I believe it was 2 years).

Does a living will ever expire? How often do I need to update the document?

No, a living will in Ohio does not expire. The prototype form specifically states that it does not expire. It can be changed or revoked. There may be several reasons to update the document. For example, if you change your mind about who should be authorized to make decisions for you or what those decisions should be, then you need to change your living will. Also, if the law changes or you move to another state, you might want to review what changes, if any, are necessary.