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Advance Directive and Living Will

Documents recording medical treatment wishes, and naming who decides, if a person becomes unable to decide for themselves.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

An advance directive records health care decisions in advance, for use if the person becomes unable to make or communicate them. It usually has two parts, and they do different jobs. A living will states treatment preferences - typically about life-sustaining treatment in defined circumstances. A health care proxy, or health care power of attorney, names a person to make decisions that the document itself does not answer.

The second part is generally the more useful, because real medical situations rarely match a written scenario exactly, and a named decision-maker can respond to the actual facts. Without one, providers turn to a statutory list of default decision-makers, which may not reflect the patient's wishes and can leave an unmarried partner without standing.

An advance directive is distinct from a physician order such as a do-not-resuscitate order: the directive expresses wishes, while the physician order is a medical instruction acted on immediately by treating staff.

Where this comes from

The Patient Self-Determination Act, 42 U.S.C. § 1395cc(f), requires participating Medicare and Medicaid providers to inform adult patients of their rights under state law to make advance directives. The content, formalities and effect of the directives themselves are set by state law.

When people hire a lawyer for this

Many people complete these using a state-issued form without a lawyer, and that is a legitimate route. Advice is worth it where family disagreement is likely, where the named agent lives in another state, or where the documents need to work alongside a wider estate plan - and, in every case, the document has to be given to the people who would need it.

Find a lawyer for this in your state

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programmes provide free help with many of these problems: civil legal aid programmes by state.