Question 1

Can my healthcare agent override my living will?

Accepted Answer

In most states, your living will takes precedence over your healthcare agent's decisions for the specific situations and treatments it addresses. Your agent is expected to follow the instructions in your living will. However, if a situation arises that your living will does not specifically address, your agent uses their judgment based on your known values and preferences. In some states, your agent may be able to override the living will if they can demonstrate that your circumstances have changed in ways you could not have anticipated, but this is generally a high bar.

Question 2

Do I need a lawyer to create these documents?

Accepted Answer

You do not need a lawyer. Many states provide free statutory forms on their health department or attorney general websites. Hospitals and medical associations also often provide forms. However, if you have complex medical situations, blended family dynamics, or specific concerns about end-of-life care, consulting an estate planning attorney ensures your documents are comprehensive and properly executed. Attorney fees for advance directives are typically $200 to $500, often less if done as part of a broader estate plan.

Question 3

Are advance directives from one state valid in another?

Accepted Answer

Most states recognize advance directives executed in other states, either by statute or by common practice. However, the degree of recognition varies. Some states will honor an out-of-state directive only if it complies with the law of either the state where it was executed or the state where treatment is provided. If you spend significant time in multiple states (snowbirds, frequent travelers), consider executing advance directives that comply with the laws of each state. At minimum, ensure your documents comply with the law of the state where you receive most of your medical care.

Question 4

Can I change or revoke my living will or healthcare POA?

Accepted Answer

Yes, you can change or revoke either document at any time while you are mentally competent. Most states allow revocation by: creating a new document that expressly revokes the prior one, physically destroying the document, or making a written or oral declaration of revocation to your healthcare agent or medical providers. Notify all parties who have copies of the old documents when you make changes. Some states also automatically revoke a healthcare POA designation of a spouse upon divorce, but you should not rely on this and should explicitly revoke and replace the document.

Question 5

What is a POLST and how is it different from a living will?

Accepted Answer

A POLST (Physician Orders for Life-Sustaining Treatment, also known as MOLST, MOST, or COLST in some states) is a medical order signed by a physician that applies to patients with serious illness or frailty. Unlike a living will (which is an advance directive expressing wishes), a POLST is an actionable medical order that emergency responders and healthcare providers must follow. It typically covers CPR, mechanical ventilation, antibiotics, feeding tubes, and transfer to a hospital. A POLST is designed for people who are already seriously ill, while a living will is appropriate for all adults regardless of health status. Both documents can coexist.

State	Key Difference
California	California combines the living will and healthcare POA into a single document called the Advance Health Care Directive (Cal. Prob. Code 4700-4701). The form must be signed by the principal and either notarized or witnessed by two adults. The witnesses cannot be the healthcare agent, the treating healthcare provider, or an operator of a community care facility. California also allows a POLST (Physician Orders for Life-Sustaining Treatment) for individuals with serious illness.
Texas	Texas has two separate statutory forms: the Directive to Physicians and Family or Surrogates (living will, Tex. Health & Safety Code 166.033) and the Medical Power of Attorney (Tex. Health & Safety Code 166.164). The living will requires two witnesses; the medical POA requires two witnesses and must be signed by the agent. Texas also has a separate out-of-hospital DNR form for patients who do not want CPR outside of a hospital setting.
Florida	Florida has separate forms for the living will (Fla. Stat. 765.302) and the designation of healthcare surrogate (Fla. Stat. 765.202). Both require two witnesses. The healthcare surrogate designation must also be signed by the principal. Florida law provides a specific hierarchy of surrogate decision-makers if no healthcare surrogate is designated: spouse, adult child (majority of), parent, adult sibling (majority of), adult relative, close friend.
New York	New York uses a Health Care Proxy form (N.Y. Pub. Health Law 2981) that requires two adult witnesses (one of whom cannot be the agent). New York does not have a specific living will statute, but courts recognize living wills under common law as evidence of the patient's wishes. In practice, having both a health care proxy and a living will is strongly recommended in New York.
Illinois	Illinois has separate statutory forms for the Health Care Power of Attorney (755 ILCS 45/4-10) and the Living Will Declaration (755 ILCS 35/3). The healthcare POA requires one witness (who cannot be the agent). The living will requires two witnesses. Illinois also recognizes a Declaration for Mental Health Treatment (755 ILCS 43), which is a separate advance directive for psychiatric care.

Living Will vs Healthcare POA: Which Do You Need?

Quick Answer

Step-by-Step Guide

State-by-State Differences

Common Mistakes to Avoid

Documents You'll Need

Living Will

Power of Attorney

Last Will & Testament

Frequently Asked Questions

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