Living Wills and Advance Directives: A Comprehensive Attorney Guide

The Attorney's Role in Advance Healthcare Planning

The 1990 Supreme Court decision in Cruzan v. Director, Missouri Department of Health settled two things that still drive advance-directive practice today: competent patients have a constitutional right to refuse medical treatment, and states can require clear and convincing evidence of an incapacitated patient's wishes before withdrawing life support. Three years earlier, Nancy Cruzan's parents had spent 7 years in Missouri courts trying to establish what Nancy would've wanted. Advance directives — the documents that express a person's wishes about medical treatment in the event of incapacity — exist to prevent that outcome.

This guide covers the principal documents in the toolkit: the living will (a written statement of the client's own healthcare wishes), the healthcare proxy or healthcare power of attorney (which designates an agent), the POLST/MOLST form (a medical order that travels with the patient), and DNR orders. It also addresses state-specific execution requirements, the cross-state portability problem, and electronic registries. Our companion guide to powers of attorney digs into the agent-appointment aspects of healthcare proxies.

The ABA Commission on Law and Aging is the leading resource on legal issues in advance directive planning — their state-by-state survey of advance directive laws and forms is essential reference material for multi-state practitioners.

Living Wills vs. Healthcare Proxies: Distinct Documents with Distinct Functions

Attorneys and clients frequently conflate living wills and healthcare proxies, treating them as interchangeable or redundant. They are neither.

A living will is a document in which the principal directly expresses preferences about specific medical treatments: the use of artificial life support, mechanical ventilation, artificial nutrition and hydration, resuscitation, and similar interventions. It speaks in the first person and directly guides medical providers without the need for an agent.

A healthcare proxy or healthcare power of attorney designates a specific individual (the agent or proxy) to make healthcare decisions for the principal if the principal lacks decision-making capacity. The agent can address situations the living will did not anticipate, can communicate in real time with medical providers, and can adapt to changing circumstances. A living will cannot do any of these things.

Best practice is to execute both documents: the healthcare proxy for appointment of a trusted agent and the living will for expression of core values and specific treatment preferences. If there is any conflict between the two, most state statutes give effect to the more specific document or the one executed most recently. Practitioners should include a conflict resolution clause that expressly addresses the relationship between the two documents.

POLST and MOLST: Medical Orders, Not Legal Documents

The Physician Orders for Life-Sustaining Treatment (POLST) form—called MOLST (Medical Orders for Life-Sustaining Treatment) in some states—is categorically different from a living will or healthcare proxy. It is a medical order, signed by a licensed clinician, that travels with the patient through the healthcare system and must be honored by emergency responders and other providers who encounter it.

POLST forms are intended for individuals with serious illness or advanced age who are at high risk of experiencing a medical crisis in the near future. They translate the patient's wishes (as expressed in a living will or through a conversation with a clinician) into actionable medical orders: whether to attempt CPR, what level of medical intervention to pursue if the patient cannot speak for themselves, and whether to transfer to a hospital or receive treatment in place.

The National POLST organization (polst.org) maintains current forms, training resources, and a state-by-state guide to POLST programs and legislation. Attorneys should understand the difference between legal documents they draft and POLST forms that clinicians execute, and should counsel clients to complete a POLST form in consultation with their physician when it is clinically appropriate.

DNR Orders: Scope and Limitations

A do-not-resuscitate (DNR) order is a medical order directing that cardiopulmonary resuscitation (CPR) not be attempted if the patient experiences cardiac or respiratory arrest. DNR orders are a subset of the broader POLST/advance directive framework but are often executed independently in hospital settings or for clients who have a specific and immediate preference about resuscitation.

Attorneys should understand that a DNR order is a hospital-specific medical order and does not automatically govern what happens outside the hospital. Out-of-hospital DNR orders (also called OHNR or OOH-DNR in various states) are separate documents required to instruct emergency medical services personnel not to attempt resuscitation. In many states, a standard hospital DNR order has no legal effect if the patient suffers cardiac arrest at home or in a nursing facility before a properly completed out-of-hospital DNR or POLST is in place.

Clients who have strong feelings about resuscitation should be counseled to complete both hospital and out-of-hospital documentation and to discuss their preferences with their physician, family members, and any professional caregivers. The attorney's role is to ensure the legal documents support and are consistent with these medical orders.

State-Specific Requirements and Landmark Cases

Advance directive law is entirely a creature of state statute, and the execution requirements vary significantly. Some states require two witnesses who are not related to the principal and who would not inherit under the will; others require notarization in lieu of witnesses; a few require both.

Most states have a specific statutory form that is presumptively valid, along with a safe harbor for documents that 'substantially comply' with the statutory requirements. Documents that are facially deficient—missing required signatures, executed in a state with different requirements—may be honored as a matter of clinical practice but may lack the legal enforceability that protects providers who act in reliance on them.

Two landmark cases shaped modern advance-directive law. Cruzan v. Director, Missouri Department of Health (1990) established that competent patients have a constitutional right to refuse medical treatment, including artificial nutrition, and that states may require clear and convincing evidence of an incompetent patient's wishes before honoring a request to withdraw life support. The Terri Schiavo case (2005) dramatized the consequences of failing to execute advance directives and the litigation that can ensue when family members disagree about an incapacitated patient's wishes—a conflict that consumed years of litigation and congressional attention.

Compassion & Choices is a nonprofit organization that advocates for end-of-life autonomy and publishes resources on advance directive law across all 50 states. Their materials can help practitioners and clients understand the practical implications of state law in addition to the technical requirements.

Cross-State Portability and Electronic Registries

A significant practical problem with advance directives is portability: a document validly executed in one state may not be automatically recognized in another. Most states have enacted reciprocity provisions that recognize advance directives executed in conformity with the law of the state where they were signed, but the mechanics of establishing that validity in an emergency setting are challenging. A healthcare provider in a hospital emergency department does not have time to research the advance directive law of the state where the document was executed.

The most practical solution is to execute state-specific advance directive forms for each state where the client spends significant time—particularly clients with winter and summer residences in different states, or clients who travel frequently. For clients who move between states, updating advance directives should be a standard item on the legal checklist along with updating the will and beneficiary designations.

Electronic advance directive registries, available in several states, let clients register their advance directives so healthcare providers can pull them online in an emergency. Registry participation doesn't guarantee portability across state lines, but it dramatically improves the odds the documents will be found and honored when needed. Advise clients to register in states that maintain registries — and to carry a wallet card indicating that advance directives are on file.