Living Will Attorneys
A living will is a written statement of your wishes about life-sustaining treatment if you become too ill to speak for yourself. Despite its name, it is not a will. It does not leave property to anyone and has no effect after your death. It speaks only while you are alive and unable to make or communicate medical decisions.
Every adult can benefit from one. Serious illness and sudden injury do not wait for retirement, and the questions a living will answers are the ones families find hardest to face in a hospital hallway. A living will puts your answer in writing before anyone has to guess.
Milvidskiy Law Group P.C. prepares living wills as part of a coordinated incapacity plan. Our attorneys draft the document to work alongside your health care proxy and power of attorney, in language your doctors and family can use.
Key Takeaways:
- A living will gives instructions about life-sustaining treatment; it does not name a decision-maker and does not dispose of property. Most people should pair it with a health care proxy that appoints an agent.
- A living will is not a medical order. MOLST forms in New York and Connecticut, and POLST forms in New Jersey, are clinical orders signed by a practitioner and serve a different purpose.
- The most common failures are vague language, no named agent, and a document no one can find. Clear drafting, copies in the right hands, and periodic review address all three.
What a Living Will Is, and What It Is Not
A living will is one type of advance directive. It records, in advance, the treatments you would accept or refuse if you had a terminal condition, were permanently unconscious, or could not recover to a quality of life you consider acceptable. Doctors and family turn to it when you cannot answer for yourself.
It is not a last will and testament. A will distributes property after death and passes through probate. A living will addresses medical care during life and is never filed with a court.
Living Will vs. Health Care Proxy: Why You Should Have Both
The distinction is simple. A health care proxy (called a medical power of attorney or appointment of health care representative in some states) names a person to make medical decisions for you. A living will gives instructions about what those decisions should be. One appoints; the other directs.
Each fills a gap in the other. A living will cannot anticipate every situation, and doctors may hesitate to act on a general statement when the facts are complicated. An agent can weigh actual circumstances and decide in real time. But an agent without written guidance carries the full weight alone.
Together, the documents give your agent both authority and direction. Our attorneys typically prepare a living will and a health care proxy at the same time and draft them so neither contradicts the other. A conflict between the two is one of the more common problems we see in documents prepared elsewhere.
What a Living Will Typically Covers
A well-drafted living will addresses the decisions most likely to arise near the end of life. Most cover the following:
- Life support. Whether you want mechanical ventilation, dialysis, or similar interventions when they would only prolong the dying process.
- Artificial nutrition and hydration. Whether you want feeding tubes or intravenous fluids, and under what conditions.
- Resuscitation preferences. Whether you want cardiopulmonary resuscitation attempted if your heart or breathing stops.
- Pain management and comfort care. Most living wills direct that comfort care continue even when life-sustaining treatment is withheld, and that pain relief be provided even if it may hasten death.
- Organ and tissue donation. Whether you wish to donate, and any limits on purpose or recipients.
- Religious and personal values. Instructions grounded in your faith or convictions, including any requirement that clergy be consulted or that certain treatments never be withheld.
The goal is not to script every possibility. It is to give your doctors and your agent a clear picture of what matters to you.
How a Living Will Is Used in Practice
A living will takes effect only when you lack capacity to make your own decisions. Until then, you decide, and you can revoke or change it at any time. When it applies, your physician reviews it, and your agent uses it as the primary evidence of what you would have chosen.
The document earns its keep when family members disagree. Suppose one adult child believes a parent would want every intervention and another believes the parent would want comfort care only. Without a writing, the dispute may stall treatment or end up before a judge. With a clear living will, the conversation shifts to what the parent actually said.
How the Law Treats Living Wills in New York, New Jersey, and Connecticut
All three states recognize a competent adult’s right to refuse medical treatment and give effect to written statements of your wishes. The legal framework differs, and requirements vary by state.
New York has no statute specifically governing living wills. The state’s Health Care Proxy Law creates the health care proxy, and New York courts have upheld living wills that provide clear and convincing evidence of the patient’s wishes. In practice, a New York living will works as a companion to a properly executed health care proxy.
New Jersey recognizes advance directives by statute and divides them into two kinds. A proxy directive appoints a person to make health care decisions for you. An instruction directive, which is what most people mean by a living will, tells your physician and family the situations in which you would or would not want life-sustaining treatment. The directive takes effect only after your physician determines you cannot understand your diagnosis, treatment options, and their risks and benefits.
Connecticut also recognizes living wills by statute. Connecticut law defines a living will as a written statement of the declarant’s wishes about life support and provides statutory forms. The state’s combined advance directive form covers appointment of a health care representative, a living will, designation of a conservator for future incapacity, and organ donation in one document, and you may complete some sections and skip others.
Execution formalities, including witness requirements, differ across the three states. Our attorneys handle those details so the document is valid where you live.
Living wills and MOLST or POLST forms
A living will is a personal statement. A MOLST or POLST form is a medical order. New York and Connecticut use the term MOLST (Medical Orders for Life-Sustaining Treatment); New Jersey uses POLST (Practitioner Orders for Life-Sustaining Treatment). These forms are completed with and signed by a physician or other authorized practitioner after a conversation about your goals of care. They are intended for people who are seriously ill or near the end of life, and emergency personnel act on them directly.
Most healthy adults do not need a MOLST or POLST, but everyone should have a living will and a health care proxy. When illness advances, those documents guide the conversation that produces the medical order.
Common Mistakes
- Vague language. “No heroic measures” means different things to different doctors. Instructions should name the treatments and the conditions under which they apply.
- No agent named. A living will alone leaves no one with authority to interpret it, and the default decision-makers under state law may not be the people you would choose.
- Documents no one can find. A living will locked in a safe deposit box is useless at 2 a.m. in an emergency room.
- Improper execution. Missing or disqualified witnesses can make a document unusable in the state where you are treated.
- Never updated. Preferences change after a diagnosis, a marriage, a divorce, or the death of a named agent.
Keeping Your Living Will Current and Findable
Give copies to your health care agent and any alternate, your primary physician, and your closest family members. Ask your doctor to place a copy in your medical record. Keep the original where family can reach it quickly, and tell them where it is.
Review the document every few years and after any major life event. A new diagnosis is the most important trigger. Clients enrolled in our Client Care Program review their incapacity documents as part of ongoing plan maintenance.
How a Living Will Fits Within Your Estate Plan
A living will is one of four core incapacity documents. The others are a health care proxy, a HIPAA authorization that lets your agent access your medical information, and a durable power of attorney for financial matters. Some clients prefer a springing power of attorney that takes effect only upon incapacity. Either way, the medical and financial documents should name people who can work together.
These documents sit within a broader estate plan that addresses what happens to your property at death, usually through a will, a living trust, or both. For older clients and those facing long-term care, the living will is also part of the elder law conversation about care preferences and paying for care. A complete set of incapacity documents is often the difference between a family deciding privately and a family petitioning a court for adult guardianship.
What Our Living Will Service Includes
- A conversation with an attorney about your values, your medical history, and the treatments you would accept or refuse.
- A living will drafted in plain language, specific enough to guide your doctors and flexible enough for unforeseen circumstances.
- Coordination with your health care proxy, HIPAA authorization, and power of attorney so the documents are consistent and name compatible decision-makers.
- Execution supervised by our attorneys, with witnesses who meet the requirements of your state.
- Guidance on who should hold copies.
- Periodic review through our Client Care Program for clients who want ongoing maintenance.
When a Living Will May Not Be Enough
A living will cannot appoint a decision-maker; that requires a health care proxy. It cannot direct emergency responders; that requires a MOLST or POLST signed by a practitioner. It cannot manage your finances or property; that requires a power of attorney or a trust.
Some clients decide, after discussion, that they would rather trust a chosen agent to decide in the moment than give detailed written instructions. That is a legitimate choice, and we may then draft a shorter values statement to guide the agent instead.
Schedule a Living Will Consultation
If you do not have a living will, or have one you have not read in years, we can help. Our attorneys practice in New York, New Jersey, and Connecticut and prepare living wills as part of a complete set of incapacity documents. Contact Milvidskiy Law Group P.C. to schedule a consultation with an estate planning attorney.
This page is provided for general informational purposes only and does not constitute legal advice. Laws differ by state and change over time. For advice about your situation, consult a qualified attorney.
Frequently Asked Questions
What is a living will?
A living will is a written statement of the medical treatment you would accept or refuse if you could no longer make or communicate decisions yourself. It usually addresses life support, artificial nutrition and hydration, resuscitation, and comfort care. It takes effect only while you are alive and lack capacity, and it has no effect on your property.
Is a living will the same as a will?
No. A will directs how your property passes after your death and is handled through probate. A living will gives instructions about medical care while you are alive but unable to speak for yourself. The two documents serve entirely different purposes, and most complete estate plans include both.
What is the difference between a living will and a health care proxy?
A health care proxy appoints a person to make medical decisions for you. A living will states what those decisions should be. The proxy provides authority; the living will provides direction. Most people should have both, drafted together so they do not conflict.
Do I need a living will if I already have a health care proxy?
A health care proxy alone leaves your agent to decide without written guidance, which can be a heavy burden and can invite disagreement among family members. A living will tells your agent and your doctors what you actually wanted. Having both gives your agent authority and a clear record to point to.
Is a living will legally binding in New York, New Jersey, and Connecticut?
New Jersey and Connecticut recognize living wills by statute. New York has no living will statute, but its courts have upheld living wills that provide clear and convincing evidence of the patient’s wishes, and the state’s Health Care Proxy Law governs the appointment of an agent. Execution requirements vary by state, so the document should be prepared and signed with your state’s rules in mind.
What is the difference between a living will and a MOLST or POLST form?
A living will is a personal statement you sign in advance. A MOLST form (used in New York and Connecticut) or POLST form (used in New Jersey) is a medical order completed with and signed by a physician or other authorized practitioner, usually for someone who is seriously ill or near the end of life. Emergency personnel act on the medical order directly. Your living will and agent help guide the conversation that produces it.
When does a living will take effect?
A living will applies only when you lack the capacity to make your own medical decisions, typically as determined by your treating physician. As long as you can make and communicate decisions, you decide, and you can change or revoke the document at any time.
Who should have a copy of my living will?
Your health care agent and any alternate agent, your primary physician, and your closest family members should each have a copy. Ask your doctor to place one in your medical record. Keep the original somewhere family can reach quickly, and tell them where it is. A document locked in a safe deposit box will not help in an emergency.
How often should I update my living will?
Review it every few years and after any major life event, including a new diagnosis, a marriage or divorce, or the death or unavailability of your named agent. Preferences often change after a serious diagnosis, and the document should reflect what you want now rather than what you assumed years ago.
Can my family override my living will?
A clear, properly executed living will is meant to be followed even if family members disagree. In practice, disputes arise most often when the language is vague or no agent has been named. Specific instructions and a named agent with authority to interpret them make it far less likely that your wishes will be set aside.
