Advance Directive

Wet Ink Signature Required

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Signature Requirements

Wet Ink Signature Required

Advance directives (living wills) are excluded from ESIGN/UETA. Wet ink signature and witnesses are required in most states.

Notarization Recommended2 Witnesses Required

Most states require wet ink signature with 2 witnesses. Some states require notarization instead of or in addition to witnesses.

Sample Advance Directive Generated by Legal Tank

Advance Directive

Declarant

1.1

I, [____________] ("Declarant"), a resident of [____________] County, State of [_____________], being of sound mind and acting of my own free will, make this Advance Directive to express my wishes regarding medical treatment in the event I become unable to communicate my own decisions.

Living Will Declaration

2.1

If at any time I have a terminal condition, am in a persistent vegetative state, or have an end-stage condition, as certified by two (2) licensed physicians, and I am no longer able to make or communicate decisions regarding my medical treatment, I direct that: [life-sustaining treatment be withheld or withdrawn / all available medical treatment be provided / the following specific instructions be followed: ____________].

Healthcare Agent Appointment

3.1

I hereby appoint [____________] (the "Healthcare Agent") to make healthcare decisions on my behalf if I become unable to make or communicate such decisions myself. If my Healthcare Agent is unable or unwilling to serve, I appoint [____________] as Successor Healthcare Agent. My Healthcare Agent's authority becomes effective only upon my incapacity as determined by my attending physician.

Agent Powers

4.1

My Healthcare Agent shall have the authority to: (a) consent to, refuse, or withdraw any medical treatment; (b) access my medical records and protected health information under HIPAA; (c) select and discharge healthcare providers; (d) authorize admission to or discharge from any medical facility; (e) make decisions regarding organ and tissue donation; and (f) make all other healthcare decisions on my behalf consistent with my known wishes.

View all 10 sections

Life-Sustaining Treatment

5.1

Regarding life-sustaining treatment, I direct as follows: Artificial nutrition and hydration: [Provide / Withhold / Agent decides]. Mechanical ventilation: [Provide / Withhold / Agent decides]. Cardiopulmonary resuscitation (CPR): [Provide / Withhold / Agent decides]. Dialysis: [Provide / Withhold / Agent decides]. Antibiotics: [Provide / Withhold / Agent decides]. I direct that comfort care and pain management always be provided.

Pain Management

6.1

I direct that I receive adequate pain relief and comfort care at all times, even if such treatment may hasten my death. I wish to be kept as comfortable and free from pain as possible, with dignity preserved.

Organ Donation

7.1

Upon my death, I [do / do not] wish to donate my organs and tissues for transplantation, research, or education. If I wish to donate, I authorize the donation of: [all organs and tissues / only the following: ____________]. My Healthcare Agent [may / may not] override this decision.

Revocation

8.1

I may revoke this Advance Directive at any time by: (a) executing a written revocation; (b) destroying this document; (c) verbal revocation in the presence of a witness; or (d) executing a new Advance Directive. Revocation is effective upon communication to my attending physician or healthcare provider.

Execution and Witnesses

9.1

I sign this Advance Directive voluntarily, of my own free will, being of sound mind. I understand its purpose and effect. This Advance Directive is executed in accordance with the laws of the State of [_____________].

9.2

We, the undersigned witnesses, declare that the Declarant signed this Advance Directive in our presence, that the Declarant appears to be of sound mind and under no duress, and that neither of us is: (a) the Declarant's Healthcare Agent; (b) a healthcare provider or employee thereof; (c) an operator or employee of a healthcare facility where the Declarant is a patient; or (d) related to the Declarant by blood, marriage, or adoption.

Governing Law

10.1

This Advance Directive shall be governed by the laws of the State of [_____________], including the [state health care decisions act / natural death act / applicable statute]. A copy of this Advance Directive shall have the same force and effect as the original.

What Is a Advance Directive?

An advance directive is a legal document that allows a competent adult to express their healthcare preferences and appoint a trusted person to make medical decisions on their behalf in the event they become incapacitated and unable to communicate. Advance directives serve as a critical component of estate planning - alongside a living trust generator and last will generator - ensuring that an individual's wishes regarding life-sustaining treatment, resuscitation, organ donation, and other medical interventions are documented and legally enforceable. Without an advance directive, medical decisions for an incapacitated patient may be made by healthcare providers or family members who may disagree about the appropriate course of treatment.

The term "advance directive" encompasses two primary documents that work together: a living will and a healthcare proxy (also called a medical power of attorney or healthcare power of attorney). A living will states the individual's specific preferences about medical treatments they do or do not want to receive under defined circumstances, such as terminal illness, permanent unconsciousness, or end-stage conditions. A healthcare proxy - similar in function to a power of attorney generator but limited to medical matters - designates an agent to make medical decisions when the individual cannot, granting that agent authority to interpret the living will and make judgment calls on situations not explicitly addressed.

Advance directives operate under the principle of patient autonomy, the fundamental right of every competent individual to accept or refuse medical treatment. This right, established through landmark court cases including Cruzan v. Director, Missouri Department of Health, and reinforced by the Patient Self-Determination Act of 1990, means that healthcare providers must honor a valid advance directive even if they personally disagree with the patient's choices. However, the specific requirements for creating a valid advance directive, including witness and notarization requirements, vary significantly by state.

A related but distinct document is the Physician Orders for Life-Sustaining Treatment (POLST), also known as MOLST in some states. Unlike an advance directive, which is a patient-created legal document, a POLST is a medical order signed by a physician that translates a patient's wishes into actionable orders for emergency responders and healthcare facilities. A POLST is typically used for individuals with serious advanced illness and is designed to be immediately actionable by paramedics and hospital staff, whereas an advance directive may require interpretation and may not be immediately available in emergency situations.

FeatureLiving WillHealthcare ProxyPOLST/MOLST
PurposeStates treatment preferencesAppoints a decision-makerTranslates wishes into medical orders
Created ByThe individual (patient)The individual (patient)Physician in consultation with patient
When ActivatedUpon incapacity determinationUpon incapacity determinationImmediately, follows patient across settings
Covers Unanticipated ScenariosNo, only pre-specified situationsYes, agent uses judgmentLimited to orders specified
Who Should Have OneAll adults age 18+All adults age 18+Seriously ill or elderly patients

📋 Key Statute: The Patient Self-Determination Act of 1990 requires all Medicare and Medicaid-participating healthcare facilities to inform patients of their right to create an advance directive and to document the directive in the patient's medical record.

Why You Need a Advance Directive

When you want to ensure your end-of-life care preferences are honored even if you become unable to communicate due to a medical emergency, progressive illness, or cognitive decline such as dementia or Alzheimer's disease. Our estate planning document service provides attorney-reviewed directives that comply with your state's specific requirements.

When you want to relieve family members from the burden of making difficult medical decisions under emotional stress by clearly documenting your wishes and designating a healthcare proxy - complementing your financial power of attorney - to act on your behalf.

When you are scheduled for a major surgery or medical procedure that carries a risk of incapacity, an advance directive - along with a living trust builder for asset protection - ensures your treatment preferences are on file and a designated agent can make decisions during your recovery.

When state intestacy and default surrogate laws would designate a family member you do not want making your medical decisions, an advance directive allows you to choose a trusted person regardless of familial relationship.

When you have strong preferences about specific medical interventions based on your religious beliefs, personal values, or quality-of-life priorities, an advance directive legally documents those preferences and obligates healthcare providers to honor them.

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Advance Directive is often used alongside other estate planning documents. Depending on your situation, you may also need:

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Download a free advance directive template instead

Key Sections in a Advance Directive

Healthcare Proxy Designation

This section names the individual's chosen agent (healthcare proxy) who will have authority to make medical decisions when the principal is incapacitated. It should include the agent's full legal name, contact information, relationship to the principal, and an alternate agent in case the primary agent is unavailable or unwilling to serve. The scope of the agent's authority should be clearly defined.

Life-Sustaining Treatment Preferences

This section documents the individual's specific wishes regarding life-sustaining treatments including mechanical ventilation, artificial nutrition and hydration, dialysis, blood transfusions, and antibiotics. Preferences should be specified for different medical scenarios such as terminal illness with no reasonable expectation of recovery, persistent vegetative state, and end-stage conditions where treatment would only prolong the dying process.

Resuscitation Preferences and DNR Orders

The resuscitation section states whether the individual wants cardiopulmonary resuscitation (CPR) attempted if their heart stops or they stop breathing. A Do Not Resuscitate (DNR) preference in an advance directive informs the healthcare proxy and medical providers of the individual's wishes, though a separate DNR order signed by a physician may be needed for emergency personnel to honor the preference.

Pain Management and Comfort Care

This section expresses the individual's preferences for pain management and palliative comfort care, including whether they prioritize pain relief even if it may hasten death, their preferences regarding hospice care, and their wishes about sedation in the final stages of a terminal illness. Comfort care directives ensure that even when curative treatment is declined, the patient receives appropriate symptom management.

Organ and Tissue Donation

The organ donation section documents the individual's wishes regarding the donation of organs, tissues, and the body for transplant, research, or medical education after death. Specifying these preferences in the advance directive reinforces decisions recorded in organ donor registries and ensures the healthcare proxy can act consistently with the individual's wishes.

Witness and Notarization Requirements

Most states require advance directives to be signed in the presence of witnesses, and some require notarization. Witness requirements typically disqualify certain individuals such as healthcare providers, facility employees, or anyone who would benefit financially from the principal's death. This section includes the witness attestation and notary acknowledgment as required by applicable state law.

Advance Directive Legal Requirements

Every state has enacted advance directive legislation, but the specific requirements for execution, including the number of witnesses required, witness disqualifications, notarization mandates, and statutory form preferences, vary significantly by state and must be followed precisely for the document to be valid.

📌 State-Specific Note: Register your advance directive with your state's advance directive registry (if available) and upload a copy to your healthcare provider's patient portal. Registries exist in Arizona, Idaho, Louisiana, Montana, Nevada, Virginia, and Washington, among others. This ensures the document is accessible to emergency medical personnel when it is needed most.

The Patient Self-Determination Act of 1990 requires Medicare and Medicaid-participating healthcare facilities to inform patients of their right to create an advance directive, to ask whether the patient has an advance directive, and to document the directive in the patient's medical record.

Healthcare providers are generally required to honor valid advance directives, but most states allow providers to decline based on conscience objections, provided they transfer the patient to a provider willing to comply with the directive's instructions.

An advance directive is only activated when a physician determines that the patient lacks decision-making capacity. The specific capacity determination process and the number of physicians required to certify incapacity vary by state, with some states requiring two independent physician determinations.

Advance directives executed in one state are generally honored in other states under the Uniform Health-Care Decisions Act adopted by many jurisdictions, but differences in state requirements can create enforceability issues for individuals who travel or relocate frequently.

Common Advance Directive Mistakes to Avoid

Creating an advance directive without discussing your healthcare preferences with your designated healthcare proxy, leaving the agent uncertain about how to interpret your wishes in complex medical situations not specifically addressed in the document.

Failing to provide copies of the advance directive to your healthcare proxy, primary care physician, hospital system, and family members, which can result in the document being unavailable when emergency medical decisions must be made.

Using vague language like "no extraordinary measures" or "no heroic treatment" without defining specific treatments you do or do not want, which forces healthcare providers and your proxy to guess your intentions.

💡 Drafting Note: Instead of "no extraordinary measures," specify each treatment individually: mechanical ventilation, artificial nutrition/hydration, dialysis, CPR, blood transfusions, antibiotics for terminal conditions. Address each one with a clear yes or no.

Not updating the advance directive after major life changes such as a new medical diagnosis, divorce from or death of the designated healthcare proxy, relocation to a different state with different legal requirements, or a change in personal values regarding end-of-life care.

Assuming that a living will alone is sufficient without designating a healthcare proxy, leaving no authorized decision-maker to handle medical situations that fall outside the specific scenarios addressed in the living will.

Frequently Asked Questions About Advance Directives

What is an advance directive?
An advance directive is a legal document that communicates your healthcare preferences and designates a trusted person to make medical decisions for you if you become incapacitated and cannot communicate your wishes. You can review a free advance directive template to understand the standard format. It typically combines two components: a living will specifying your preferences for life-sustaining treatments under various medical scenarios, and a healthcare proxy naming an agent authorized to make medical decisions on your behalf. Advance directives are recognized in all 50 states and underpin patient autonomy, ensuring your values and wishes guide your medical care even when you cannot speak for yourself.
What is the difference between an advance directive and a living will?
A living will is one component of an advance directive, not a separate document. The advance directive is the broader legal document that encompasses both the living will (which states your specific treatment preferences) and the healthcare proxy designation (which names a person to make medical decisions for you). A living will alone only addresses situations you specifically anticipated and documented, while a healthcare proxy can make judgment calls on unanticipated medical decisions. Most estate planning attorneys recommend creating a complete advance directive that includes both components rather than relying solely on a living will, which may not cover every possible medical scenario.
How do I fill out an advance directive?
To fill out an advance directive, start by reflecting on your values regarding quality of life, medical intervention, and end-of-life care. Choose a healthcare proxy you trust to make difficult decisions under pressure and discuss your wishes with them in detail. Complete your state's advance directive form or use a customizable template that complies with your state's requirements, specifying your preferences for CPR, mechanical ventilation, artificial nutrition, dialysis, and other life-sustaining treatments under different medical scenarios. Sign the document in the presence of witnesses as required by your state, and have it notarized if your state mandates notarization. Distribute copies to your healthcare proxy, physicians, hospital, and close family members.
Does an advance directive need to be notarized?
Notarization requirements for advance directives vary by state. Some states require notarization for the document to be legally valid, others accept either notarization or witness signatures, and some states require only witness signatures without notarization. Regardless of your state's minimum requirements, notarizing your advance directive adds an extra layer of authentication that can prevent challenges to the document's validity. Many healthcare facilities and physicians are more confident honoring a notarized advance directive because the notary verification confirms the principal's identity and voluntary execution. Check your state's specific requirements to ensure your advance directive meets all legal standards.
Can I create an advance directive without a lawyer?
Yes, you can legally create an advance directive without hiring a lawyer. Many states provide free statutory advance directive forms that you can complete yourself, and reputable organizations like the American Bar Association and state medical associations offer compliant templates. However, if you have complex medical situations, blended family dynamics, significant assets, or specific religious or cultural considerations that affect your healthcare preferences, consulting an estate planning attorney ensures your advance directive accurately reflects your wishes and integrates with your overall estate plan. An attorney can also help ensure compliance with your state's specific execution requirements and address coordination with other estate planning documents.
What is a healthcare proxy?
A healthcare proxy, also called a medical power of attorney or healthcare power of attorney, is both a legal document and the person designated within that document to make medical decisions on your behalf when you are unable to do so. The healthcare proxy agent has the authority to consent to or refuse medical treatments, choose healthcare providers and facilities, access your medical records, and make end-of-life care decisions consistent with your expressed wishes and values. The agent's authority is activated only when a physician determines you lack decision-making capacity and is typically terminated if you regain capacity. Choosing a reliable healthcare proxy who understands your values is one of the most important decisions in advance care planning.
Can an advance directive be overridden by family?
An advance directive cannot be overridden by family members or healthcare providers simply because they disagree with the patient's documented wishes. However, there are limited circumstances where an advance directive may not be followed: if a physician has a conscience-based objection (they must transfer the patient to a compliant provider), if the directive's instructions are medically ambiguous or inapplicable to the current situation, if state law requires specific conditions to be met before certain directives take effect, or if there is a credible legal challenge to the document's validity. A healthcare proxy agent can also make decisions that deviate from the living will if circumstances arise that the document did not anticipate, though the agent must act in the principal's best interest and consistent with known wishes.
How do I revoke an advance directive?
You can revoke an advance directive at any time as long as you have decision-making capacity. Most states allow revocation through multiple methods: executing a written revocation statement, physically destroying the document, creating a new advance directive that expressly revokes the prior one, or verbally stating your intent to revoke in the presence of witnesses. Some states require specific procedures for revocation to be legally effective. After revoking, you should notify your healthcare proxy, all healthcare providers who have copies, your hospital system, and family members. If you are revoking to replace the directive with an updated version, execute the new document before or simultaneously with the revocation to avoid any gap in coverage.

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