Living Will

A living will allows you to make end-of-life decisions in advance, specifically, whether, and to what extent, life-preserving and life-extending measures should be taken in the event doctors determine you are completely and permanently incapacitated and are in a state of consciousness that will not improve, like if you enter a permanent vegetative state.

People often use a living will as a supplement to a health care proxy, as it informs the agent what you want done in circumstances in which you are incapacitated and will not get better. If you have a living will, you should provide your health care proxy agent with a copy.

Why would I want to have a living will?

A person might conclude after much consideration that he or she does not want all medical efforts to be made to keep him or her alive if he or she is in a terminal and/or an unconscious (or minimally conscious), incurable mental and physical state and also lacks any ability to assist in making medical decisions.

In the absence of a living will, your doctor will undertake all customary medical measures to prolong your life, unless your health care proxy agent has the authority to decide otherwise.

When should I make a living will?

A living will is not reserved for older people; incapacitation can occur at any age, and therefore, all adults should consider making a living will.

What kinds of instructions can I make in a living will?

You can direct your agent under your health care proxy to withhold all life-sustaining measures or you can single out certain measures that you wish to be taken, including:

  • Cardiac resuscitation (if your heart stops suddenly);
  • Mechanical respiration (if you are unable to breathe on your own);
  • Dialysis (to remove toxins from your blood in the event your kidneys fail);
  • Artificial nutrition and hydration (you can decide at what point of deterioration you want food and water removed);
  • Antibiotics to treat infection; and/or
  • Pain medication;

Advances in medical technology mean that treatment options are often changing, and it may be difficult to anticipate what is available. You may wish to discuss this with your doctor before making a living will.

Many people who make a living will opt to continue treatment that makes them comfortable and free of pain, even if that treatment brings about their death sooner than would otherwise be the case.

How do I make a living will?

There is no statutory provision in New York law authorizing living wills, so there is no particular form for making one. However, a judge will accept your written and signed living will as clear and convincing evidence of your health care wishes if someone tries to challenge the living will in court. Therefore, it is best to make a written living will.

Your written living will should include:

  • Your name
  • Your assertion that you are “of sound mind and body” or other representation that you are competent to make the will;
  • Directions to your attending physician and health care proxy agent as to what you want done in the event you are in an “incurable or irreversible mental or physical condition with no reasonable expectation of recovery”;
  • The date you make the will;
  • Your signature and that of one or more witnesses (as you would do for a health care proxy or other will);

What if I change my mind about my living will?

If you make a living will, you should reconsider it often to decide whether it continues to express your wishes. If it does not, you are free to amend and/or revoke the living will. You can do so by:

Executing a subsequent living will (be sure to provide your health care proxy agent with the new will);
Notifying your doctor and/or health care proxy agent (if you have one) orally or in writing that you have revoked your living will; or
Destroying your living will or doing anything else that reflects an intent to revoke (be sure you notify your doctor and/or health care proxy agent if you have one).

I would like to make a living will:

  • Consider what kind of care and treatment you want in the event you become incapacitated, including what kinds of treatment you wouldn’t want.
  • Consult with your doctor.
  • Get in touch with an experienced estate planning or elder law lawyer.

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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