What is a living will? It’s a question I get asked more often than you might think. First, a living will is not a will. It also is not a trust (as in a living trust). I think it is unfortunate that the name living will was chosen for this important document, because that name creates confusion with those other documents.
Here’s what the Arizona statutes say about what a living will is:
An adult may prepare a written statement known as a living will to control the health care treatment decisions that can be made on that person’s behalf.
So, that’s what a living will is: a written statement to control the health care treatment decisions that can be made on your behalf. Now, here’s what the statutes say about how a living will works:
Any writing that meets the requirements of this article may be used to create a living will. A person may write and use a living will without writing a health care power of attorney or may attach a living will to the person’s health care power of attorney. If a person has a health care power of attorney, the agent must make health care decisions that are consistent with the person’s known desires and that are medically reasonable and appropriate. A person can, but is not required to, state the person’s desires in a living will.
Nathan B. Hannah, attorney
That seems simple enough. If you have a document that meets the requirements, it’s a living will. A power of attorney serves a different, but related, purpose. A power of attorney is a document that gives someone else the legal ability to make decisions for you. A living will controls health care treatment decisions that can be made on your behalf.
If you have a living will and a health care power of attorney, the person named as your decision maker in your power of attorney must make health care decisions for you that are consistent with the instructions in your living will. The statutes also say that a health care provider who makes good faith health care decisions based on a living will is, in general, immune from civil and criminal liability for those decisions.
That’s just about everything that the Arizona statutes say about living wills. Those statutes have been in effect since 1992. Living wills are now so widely accepted that if you are going to be admitted to a hospital in Arizona, you will almost certainly be asked if you have a living will. If you answer in the negative, the folks at the hospital will ask you to sign one on the spot.
The statutes also contain a form of living will. If you have ever discussed this subject with me, you know that I encourage use of the form of living will that is in the statutes because I believe that’s the one that is most familiar to medical providers in Arizona.
There are other forms of living wills. Some are very simple, while others are much more elaborate than the form in the Arizona statutes. If a document meets the relatively simple technical requirements laid out in the statute, then it qualifies as a living will.
Nathan B. Hannah is a Shareholder in the Tucson office, and practices in the areas of estate planning and administration, real estate, and commercial transactions. He is also a noted blogger, and you can find more of his articles on his private blog,
Contact Attorney Hannah: nhannah@dmyl.com or 520/ 322-5000
This communication is designed to bring legal developments of interest to the attention of our clients and others. It should not be relied upon as a substitute for specific legal advice in a particular matter. For further information on any of the subjects discussed, or for legal advice in connection with any particular matter, please contact us.
