top of page
  • Northern Virginia Trusts & Estates

Living Will FAQs

What is a Living Will?

A living will is a document which will provide specific medical instructions should you become incapacitated. Living wills include a healthcare power of attorney which allows you to appoint a healthcare agent who will make any decisions related to your health care should you be unable to make those decisions on your own. You can choose which life-sustaining treatments you might want should you be in a coma or have a terminal illness in your living will.

How is a Living Will Different from a Last Will and Testament?

A Last Will and Testament is a legal document which allows you to express what you want done with your assets following your death. You can name your beneficiaries in your will, as well as a guardian for your minor children. A Living Will deals with how you want to be treated should you have a terminal illness or become incapacitated in any way, and has nothing to do with financial issues.

How is a Living Will Prepared?

Generally, a legal professional will prepare your Living Will, to ensure it properly covers everything and is free from errors. A Living Will must be witnessed by at least two adults who will affirm you are of sound mind and that you are signing the Living will by your own choice. Your witnesses cannot be your healthcare provider or an employee of your healthcare provider. Preferably neither of the witnesses should be related to you, but legally, only one witness can be related to you by blood, marriage or adoption.

When Does a Living Will Take Effect?

Your Living Will goes into effect when your primary physician makes the determination that you are no longer able to make your own healthcare decisions. Your doctor will certify, in writing, that you are ill or injured to an extent which prevents you from expressing your own healthcare wishes, then your Living Will takes effect.

Who Should Have a Living Will?

It is almost easier to answer this question by saying there is virtually no person who should not have a Living Will. Consider whether would happen if you suddenly became incapacitated, and had not let your wishes be known. Perhaps you adamantly do not want heroic measures used, or do not want to be kept on life support when there is no chance you will recover. If you do not have these wishes clearly stated in your Living Will, you then you have no control over what decisions are made.

How Does a Doctor Decide a Patient Can No Longer Make His or Her Decisions?

In order to decide whether you can or cannot make decisions for yourself, your doctor will determine whether you can understand what he or she is telling you, and the consequences of any decision you might make, whether you can make an informed decision based on your doctor’s explanation, and whether you can relay your wishes to your doctor. If you are unable to do these things, then the doctor will determine you are unable to continue to make your own healthcare decisions, therefore the wishes expressed in your Living Will take over.

Can I Name My Healthcare Provider as My Healthcare Agent?

It is never a good idea to name your healthcare provider as your healthcare agent, as this is considered a conflict of interest. Further, in most states, it is not legal to name your healthcare provider as your healthcare agent.

Are There Specific Decisions My Healthcare Agent Can’t Make?

In addition to specific prohibitions you include in your Living Will, your healthcare agent cannot authorize:

  1. Mercy killing;

  2. Sterilization;

  3. Abortion;

  4. Extreme surgical procedures;

  5. Extreme psychiatric treatment, and

  6. Cannot put you in a mental health facility or authorize any at beyond what you state in your Living Will and Healthcare Power of Attorney.

Does a Living Will Expire?

Essentially, your Living Will remains in effect until you die or until you revoke the Living Will. The only other scenario which exists regarding expiration of your Living Will is if someone challenges your capacity to execute the document, although this is extremely rare.

If you have any additional questions regarding a Living Will, please contact us today!

12 views0 comments

Recent Posts

See All

How Do You Contest a Will in Virginia?

Updated April 2022 In the Commonwealth of Virginia, only “interested parties” can contest the validity of a will.  An interested party (or interested person) is any individual that has the standing to


bottom of page