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Requirements for Executing a Valid Living Will / Advanced Healthcare Directive

The procedure for creating a valid Living Will (Advanced Health Care Directive) requires attention to detail but is not difficult.

Each State has requirements and formalities that must be followed to properly sign a Living Will. The first most basic requirement of a valid Living Will is that it must be (1) in writing. The next requirement is that the Declarant (the person creating the Living Will) (2) must sign it with the (3) intent of creating a valid Living Will. Ideally, the signature must be the same legal signature that you would use on any other legal documents with your full legal name. If you are unable to sign your Living Will we suggest you consult with a local attorney about properly executing it. A final requirement is that there be (4) witnesses to the signing of the Living Will.

Most states do NOT require that a Living Will be notarized; only North Carolina, South Carolina and Tennessee currently require that a notary be present.

Witnesses:
All states require that there be two witnesses to the signing of a Living Will. The witnesses may be called upon to testify to “prove” your Living Will. To be competent as witnesses, they must be (1) over the age of majority and must have the (2) mental capacity to know that they are acting as witnesses to the Living Will and (3) would be competent to testify regarding the signing of the document. In addition, the witnesses should be (4) impartial as possible in regards to the Living Will.

Witnesses should be carefully selected for their independence and credibility. Review any additional requirements for your witnesses specified in the “Attestation of Witnesses” document provided with your Living Will.

Living Will Execution Ceremony:
Conducting a Living Will execution ceremony is not difficult and does not require an attorney. Prepare by printing the entire Living Will. Gather your witnesses along with the unsigned document for your signing ceremony. State in a voice that is clearly audible to all of the witnesses that you declare this (the unsigned document) to be your Living Will and that you are asking the two persons present to act as witnesses to the Living Will and to your signature. Initial and date each page of the Living Will in the spaces provided at the lower right hand corner of each page, enter the date and the place of signing, then sign it in the space provided in full view of the witnesses. The witnesses should then sign the Living Will in the section below your signature.

The witnesses should also complete and sign the separate “Attestation of the Witnesses” document. Sign only one copy of the Living Will.

After the Ceremony:
After the Living Will (Advanced Health Care Directive) is signed, it should be placed in a safe place known to others. You may make photocopies of the Living Will and make these copies available to select people such as your Health Care Proxy or patient advocate. It is also important that your medical care professionals know about this document. You should give a copy to your primary care physician and ask that it be made a part of your permanent file. In most states, once your primary care physician knows about your Living Will, they must follow it or have you moved to a facility which will allow for your choices to be made. Some states do not enforce a Living Will, but in those circumstances, it is important that others still know your wishes, as it may guide their decisions in helping you.

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