What is a Living Will?

A living will allows you to appoint an individual to make healthcare decisions on your behalf if you become too ill or mentally unable to do so. Also known as advance directives, advance medical directives or healthcare power of attorney documents, living wills are legally valid in Virginia as long as you comply with the statutory formalities. The Virginia Code Section 54.1-2981 forward is the Health Care Decisions Act. Virginia Code Annotated, Sections 54.1-2984 sets forth the language that you must incorporate into your living will for it to become valid.

Your living will must be in writing, must be signed in front of two witnesses, and those witnesses must sign your living will in front of you. You must date your living will and include your medical directives within the document. Your advance medical directive can incorporate information regarding the medical treatments, the types of healthcare facilities and life-prolonging treatments you would want if you became mentally unable to make those decisions. The person you appoint in your living will to act as your agent or attorney-in-fact must be at least 18 and act in your best interests. You can also ask your agent to donate your organs after your death by stating such in writing.

It is generally a good idea to appoint at least two agents to make medical decisions for you pursuant to your written directive. One agent should be the primary and the other should be the alternate in case the primary becomes unable to serve. If you want to change or revoke your will, you can do so at any time orally or in writing. Make sure you let everyone know that you are revoking your advance directive and give them copies of your changes. Obviously, written revocations are a good idea so you can give copies to your physician, family and agents easily.

Although living wills are not required in Virginia, failure to create one can mean that a guardian will make healthcare decisions for you if you become mentally unable to do so. In some situations, a court-ordered guardian can become the designated agent who can make these important decisions. A guardian may be a family member or an acquaintance or if you have no family or friends willing to serve, a court may appoint an attorney. The Virginia State Bar offers a Legal Handbook for Cancer Survivors brochure that contains additional information regarding medical directives in Virginia. You can access its brochure by clicking here.

Categories: