Do You Need a Living Will?

Do You Need a Living Will?

Wills are often associated with the process that occurs after a person passes. Many people are not aware that they can create a will that dictates what happens before their final day. Living wills, sometimes called Advance Health Care Directives, help you plan for your own care. These can be of great help when you no longer have the capacity to make decisions. Creating a living will is one of the most important estate planning activities.

Defining the Living Will

A living will has a specific definition in end of life law. It is a legal document that details a person's plan for medical care in the case he or she is unable to do so. Generally, these documents also help determine whether the person wants life-support if necessary. As you can see, these are all very important considerations that everyone should plan for.

Utah's Take on the Subject

Utah law has a specific statute that regulates Advance Health Care Directives. Under Utah Code 75-2a-101 et seq., an adult has a legal right to:

  1. Accept or reject medical treatment.
  2. Deny further treatment.
  3. To create a dignity order.

This section also makes these documents legally binding on other parties. Therefore, a health care provider is not legally liable for complying with a living will. In the case that a doctor does not want to follow the order, the patient has to be transferred.

Requirements to Create a Living Will

There are several elements to meet in order to create a legally valid directive. First, one must be an adult of 18 years of age or older. Second, the living will must be in writing and signed by the declarant. As with a normal will, the declarant must sign the document in front of two witnesses. The document must also have a date of execution. There is also a requirement that the format be the same or similar to Utah Code 75-2-1104.

Challenges to a Living Will

A living will has certain presumptions that support its validity. First, there is a presumption that an adult has the capacity to make or revoke such an order. To overcome this presumption, there needs to be some sort of medical proof. Usually, this must be a statement from an examining physician who can bear witness to the declarant's lack of capacity. However, the declarant is also able to challenge this finding through his or her own statement.

There is also a presumption that a health care directive is valid. This applies as long as the directive follows the instructions listed in Utah Code 75-2A-101. The presumption requires health care providers to assume that the declarant had the capacity to create the document.

Other Issues

Several other issues can arise with a living will. These documents can actually be revoked by the declarant if legal capacity exists. Yet, sometimes the revocation of documents is challenged. Furthermore, issues can arise when the declarant makes a directive in one state and moves to another jurisdiction. In such as situation, it is a good idea to get help from an estate lawyer.

If you need help with an end of life law issue, contact Spencer and Jensen PLLC. An experienced attorney can help you with any estate law issues, including probate hearings.

Tags: living will, will, life law

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