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Will vs. Living Will. What is the Difference.
People sometimes use “will” and “living will” interchangeably, but they are two completely different legal documents. A will, also called a last will and testament, directs who receives your property when you die. A living will is part of an advance directive: it states the kind of health care treatment you want, or do not want, when you are no longer able to make that decision yourself.
| Question | Will | Living will |
|---|---|---|
| What it does | States who receives your property. | States your wishes about medical treatment. |
| When it operates | After your death. | During your life, once you cannot make or communicate medical decisions. |
| If you do not have one | Your property passes to your closest living relatives in the order set by EPTL § 4-1.1; you are said to have died intestate. | Your health care agent, if you named one, decides, guided by whatever wishes you made known. |
| Companion document | Often a trust and a power of attorney. | The health care proxy, and sometimes a do-not-resuscitate order. |
The Will
A will is a legal document you sign in which you name the people you want to receive your property. If you do not sign a will during your lifetime, the state gives your property to your closest living relatives in the order provided by law, and you are considered to have died intestate. In New York the people who take when there is no will are listed in EPTL § 4-1.1.
For a will to be valid in New York, it must meet the requirements of EPTL § 3-1.1 and EPTL § 3-2.1.
| Requirement | Statute |
|---|---|
| The testator must be at least 18 years old and of sound mind and memory. | EPTL § 3-1.1 |
| The testator signs the will at the end. Another person may sign in the testator’s name, but only in the testator’s presence and at the testator’s direction, and that person must also sign his own name. | EPTL § 3-2.1(a)(1) |
| The testator signs in the presence of two witnesses, or acknowledges to each of the two witnesses that the signature on the will is his. | EPTL § 3-2.1(a)(2) |
| The testator declares to the witnesses that the instrument he is signing, or has signed, is his will. | EPTL § 3-2.1(a)(3) |
| The two witnesses, within 30 days of each other, attest the testator’s signature as affixed or acknowledged in their presence. | EPTL § 3-2.1(a)(4) |
If you are thinking about preparing one, see our guide to how to write a will.
The Living Will
A living will is a document you sign that gives written instructions about your health care wishes. It is usually part of an advance directive, the set of legal documents that deals with your health care. In New York, an advance directive may include the living will, the health care proxy and the do-not-resuscitate order; you can also include the DNR instruction in the living will itself. The living will takes effect when you become unable to make or communicate your medical decisions, for example when you are in a coma.
A living will typically addresses whether mechanical ventilation, dialysis or other life support should be used if you cannot recover; whether feeding tubes should be used when you cannot eat or drink; whether CPR should be attempted if your heart stops; your preferences about pain medication, especially where it might shorten life; your wishes about organ and tissue donation; instructions for particular scenarios such as terminal illness, persistent vegetative state or severe brain injury; and any treatment preferences based on religious belief.
The Health Care Proxy
The living will should not be confused with the health care proxy, the document in which you authorize another person to make your health care decisions if you are incapacitated. New York Public Health Law § 2981 governs health care proxies. The proxy must be in writing, signed by you and witnessed by two adults who are not the agent. It takes effect when a physician determines that you cannot make decisions, and you can revoke it at any time while you have capacity. The agent’s authority is broad but subject to any limits you write into the document, and the agent must follow your known wishes. For most people the health care proxy is the most important advance directive, because it puts decision-making in the hands of a trusted person who knows your values.
If you trust your agent to make the right decisions, you can execute the health care proxy without a living will. If you would rather the agent be guided by, or confined to, the framework of your living will, execute both and state in the proxy the limits within which the agent may decide. For this reason the two are usually signed together: the agent makes your medical decisions based on the instructions you left in the living will. You usually give copies of both to your doctor.
MOLST, DNR and Related Medical Orders
For seriously ill patients, New York offers a more specific document, the MOLST (Medical Orders for Life-Sustaining Treatment). The MOLST is a medical order signed by a physician, used for patients with serious illness or frailty where death may be near. It is more specific than a living will, addressing particular clinical scenarios; it is honored across care settings, including hospital, nursing home and home; and it is updated periodically as the patient’s condition changes. The MOLST supplements rather than replaces the living will and health care proxy.
Specific orders may also form part of an advance directive. A Do Not Resuscitate (DNR) order instructs providers not to attempt CPR if the patient’s heart stops; a Do Not Intubate (DNI) order instructs them not to insert a breathing tube; and a Do Not Hospitalize (DNH) order instructs them not to transport the patient from a nursing home to a hospital. These are typically medical orders signed by a physician based on the patient’s stated wishes, and they are honored across health care settings.
HIPAA Authorization
The Health Insurance Portability and Accountability Act (HIPAA) restricts who can see medical information. A HIPAA authorization permits release of that information to the people you name. It operates separately from the health care proxy, allows information sharing even while you still have capacity, can name several people, and helps family members support your care. It is often signed alongside the health care proxy so that the people you have chosen can get the information they need when they need it.
How Wills and Living Wills Work Together
The two documents cover different periods and different questions, but they belong in the same plan. The living will operates during your life, when you cannot make medical decisions; the will operates after death to distribute property. Both should be in place at the same time, both should name people you trust, both should be reviewed and updated regularly, and both should be stored where they can be found when needed.
Common Mistakes in Living Wills
| Mistake | Why it matters |
|---|---|
| Vague language | “I don’t want to be kept alive by machines” is ambiguous when the question is whether a ventilator for a few days might allow recovery. |
| Not talking to the agent | The agent does not know your actual wishes beyond what the document says. |
| Instructions that conflict with the proxy | Detailed directions in the living will may conflict with the discretion you gave the agent under the proxy. |
| Not updated as health changes | Instructions written for general planning may not fit the specific medical situation that develops. |
| Hidden or lost documents | A document that cannot be found when needed is useless. |
| Not given to medical providers | Even a valid document must reach the people who will act on it. |
Religious Considerations
Many advance directives address religious requirements. Jewish patients may want provisions about post-death handling consistent with religious law; Catholic patients may want directives consistent with Catholic teaching on end-of-life care; Jehovah’s Witnesses typically include a refusal of blood transfusions; Muslim patients may want provisions consistent with Islamic principles; and Buddhist patients may have specific preferences about pain management and consciousness at death. The directive should reflect your values, and standard forms often do not.
Getting the Documents Drafted
Advance directive forms are available on the internet, but a will and a set of advance directives drafted for your own objectives will serve you better than a generic form. If you would like help with a will, a living will or a health care proxy, call us at 212-233-1233 or email [email protected].
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
