A living will is a written, legal document that ensures that an individual’s end-of-life wishes are honored (COA of Southwestern Ohio 2022). It contains instructions for the medical treatments an individual would or would not want to keep them alive, as well as preferences for other medical decisions, such as pain management or organ donation. Under Ohio law, a living will declaration is applicable only to individuals in a terminal condition or who are permanently unconscious with no reasonable possibility of regaining the capacity to make an informed decision about health care options (National Hospice and Palliative Care Organization 2022).
A benefit of having a living will is that it can help alleviate the stress, burden, and conflict felt by a family member, which often occur during such an emotional time. It also protects family members, health care professionals, and others who must make critical decisions concerning a prolonged dying process.
A living will—sometimes referred to as a “declaration” or “directive”—is valid in most states. An attorney should be consulted about the legality of a living will for an adult or caregiver residing in a specific state.
A living will is different from a health care power of attorney. A health care power of attorney allows an individual to assign an agent to make health care decisions if the individual is incapacitated. A health care power of attorney is also known as an “advance directive” or “advanced health care directive.” It provides guidance when an individual is temporarily sedated or unconscious, or is permanently unable to make their own medical treatment decisions due to conditions such as Alzheimer’s, dementia, or stroke (Mayo Clinic 2020).
An individual does not have to be in a terminal situation for the health care power of attorney to take effect. However, if an individual is in a terminal condition or a permanently unconscious state, the living will takes precedence over a health care power of attorney.
Terminal Condition and Permanently Unconscious State
For a living will to take effect, a physician (or in some states, two physicians) must attest the patient meets one of these criteria:
- is in a terminal condition and unable to make their own health care decisions
- is in a permanently unconscious state and there is no reasonable possibility that they will regain the capacity to make informed decisions (Leading Age Ohio, et al. 2016)
Terminal condition means an irreversible, incurable, and untreatable condition caused by disease, illness, or injury. This is determined to a reasonable degree of medical certainty, and in accordance with reasonable medical standards, by a principal's attending physician and one other physician who has examined the principal. A terminal condition must meet both of the following requirements:
- There can be no recovery.
- Death is likely to occur within a relatively short time if life-sustaining treatment is not administered (Leading Age Ohio, et al. 2016).
Permanently unconscious state means an irreversible condition in which the patient is permanently unaware of their own person and surroundings. At least two physicians must examine the patient and agree that the patient has totally lost higher brain function and is unable to suffer or feel pain (Leading Age Ohio, et al. 2016).
Living Will Witness
An individual’s living will must be part of the patient’s medical record. The living will usually requires the signatures of the two persons present when the individual signs the document or when it is notarized by a notary public. Most states require that the witnesses not be family members or anyone working on the individual’s behalf. In such states, some people do not qualify as witnesses:
- the agent or successor agent named in the health care power of attorney
- the spouse
- the children
- an attending physician
- a relation by blood, marriage, or adoption
- a nursing home administrator (National Hospice and Palliative Care Organization 2022)
Filing the Document
Several copies of the living will should be made. One copy should be part of the patient’s permanent medical record with their primary care physician. Family members or close friends should receive copies and provide the living will to health care professionals when the patient is not under the care of their primary care physician. Anyone with a living will should carry a wallet-sized card that indicates they have a living will, identifies the primary care physician, and states where their living will is filed (Mayo Clinic 2020).
COA of Southwestern Ohio (Council on Aging of Southwestern Ohio). 2022. “Living Will.” January 22, 2022.
Leading Age Ohio, Ohio State Medical Association, Ohio Hospital Association, Ohio Osteopathic Association, and Ohio State Bar Association. 2016. “State of Ohio Living Will Declaration Notice to Declarant.” August 2016. PDF.
Mayo Clinic. 2020. “Living Wills and Advance Directives for Medical Decisions.” Healthy Lifestyle (website). May 2, 2022.
National Hospice and Palliative Care Organization. 2022. “Ohio Advance Directive Planning for Important Health Care Decisions.” CaringInfo (website). Revised 2022. (first published 2005) PDF.