Wills and Probate
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Living Will Requirements
A living will is a type of will that can be executed during a person's lifetime and that instructs on the issue of medical treatment in instances of terminal illness or vegetative condition. State laws vary as to whether they allow and recognize living wills. Requirements and directions for what conditions and provisions are permissible in living wills also vary by state jurisdiction.
Notwithstanding the nuances of specific state laws that govern living wills, there are also some standard, general requirements for living wills that apply across the board. These generalized requirements deal with making a living will legal. The requirements fitting the general category include purpose, capacity, content, and signature.
A living will's purpose is to provide instructions that rise to the level of being legally binding to medical professionals regarding a party's preferences in instances in which that party cannot express the preferences him or herself. For those who are comatose, for instance, a decision must be made whether to sustain life through continued medical treatment. Living wills allow a party to direct that such procedures be given, not be given, or stopped under certain conditions such as terminal illness or vegetative condition.
A party must obtain the age of majority or be declared an emancipated adult in a court to make a living will. The party must be of sound mind when the living will is executed. If these conditions are not met, the party lacks the required testamentary capacity.
State-specific laws mandate what the living will must contain. Regardless, the living will must remain clear on its face that its maker executed the legal document voluntarily and the party's intentions are stated in same. State laws may require specific text or terms to be used in the living will. Examples of required text include "withdrawal of life support."
The party making a living will is required to sign the legal document. That signature must occur in front of two witnesses. The living will must also be signed in the presence of a notary public in many state jurisdictions. Some states mandate that at least one of the witnesses observing the signature of the living will must be a party other than the maker of the will's spouse or other family member. The maker of the living will is required to take a copy of the living will to his or her doctor after it is signed.