Health care proxy and living will
A health care proxy is the person who decides for you if you cannot. A living will tells doctors how you want to be treated. Many states put both in one directive.
This guide explains the law in general. It does not prepare documents or tell you whether a document is valid.
Two different jobs
A health care proxy (also called a representative, surrogate or agent) is a person who can make health care decisions for you if you cannot communicate them yourself. You name a proxy in an advance directive, often called a durable power of attorney for health care.
Source: National Institute on Aging, Choosing a Health Care Proxy · Official text
A living will is a legal document that tells doctors how you want to be treated if you cannot make your own decisions, for example about CPR, breathing machines and tube feeding. It is different from a will, which deals with your property after death.
Source: National Institute on Aging, Preparing a Living Will · Official text
Medical orders
A do not resuscitate (DNR) order and a POLST or MOLST form are medical orders that you set up with your doctor. They tell emergency and hospital staff what to do right away and work in addition to an advance directive. People usually make a POLST or MOLST near the end of life or when they are critically ill.
Source: National Institute on Aging, Advance Care Planning: Advance Directives for Health Care · Official text
Hospitals must tell you about directives
Hospitals, nursing homes, home health agencies and hospice programs that take Medicare or Medicaid, and Medicare and Medicaid health plans, must give adult patients written information about their rights under state law to accept or refuse treatment and to make advance directives. They must note in your record whether you have one, and they cannot refuse care or treat you differently because you do or do not have one. Hospitals give this information when you are admitted.
Source: 42 U.S.C. 1395cc(f) (Patient Self-Determination Act); 42 U.S.C. 1396a(w) (Medicaid) · Official text
Doctors and privacy
Under the federal health privacy rule, if state law gives someone authority to make health care decisions for an adult, such as a health care agent, doctors and health plans must treat that person as the adult's personal representative for related health information. There are exceptions, for example where the provider reasonably believes there is abuse or danger.
Source: 45 CFR 164.502(g)(1), (2), (5) · Official text
Keep copies
Keep the signed documents in a safe place and give copies to your health care proxy and your doctors. Some states have registries that store an advance directive for doctors and your proxy.
Source: National Institute on Aging, Advance Care Planning: Advance Directives for Health Care · Official text
A lawyer can help but is not required to make advance directives. Many states have their own forms you can get and fill out for free. Review your directives at least once a year and after a big change, such as moving to another state.
Source: National Institute on Aging, Advance Care Planning: Advance Directives for Health Care · Official text
What the states say
For a health care directive, 3 of 41 states require a notary, 19 let you choose a notary or witnesses and 19 do not require a notary. 34 states require two witnesses. Health care directive witness rules by state.
In 21 states the living will is a separate document from the health care agent form: see the table (21 states).
32 states have a law that says who decides if you have no directive and cannot decide. Each state page lists the order.
9 states run a registry where you can store a directive.
What to look for on your state’s page
- “Health care directive” on your state’s page: the document name, the official form and its version.
- “Signing rules”: witnesses, a notary, who cannot witness and any rule for nursing facilities.
- “Who can be your agent”: people the law keeps from serving, and when the agent starts.
- “If you have no directive”: who decides for you under state law, and in what order.
- “Registry” and “POLST”: where a directive can be stored, and the state’s medical orders.
Questions to ask a lawyer or legal aid office
A lawyer or a legal aid office can answer these. This site cannot advise you.
- Do I need witnesses, a notary, or both, and who is not allowed to be a witness?
- Should my living will and my choice of agent be one document or two?
- Do I need a POLST or a similar medical order, and who completes it?
- Where should the signed directive be kept, and who should have copies?
Pick your state
Your state's page has the form, the signing rules and the law for your state.
Free tools: the signing checklist and the letters to revoke a power of attorney or a health care directive are on each state's page.