• Kyle Persaud

How to Write a Living Will

To create a living will, you must do the following:

  1. Fill out a form prepared by the Oklahoma State Legislature.

a. On this form, you may specify whether you do, or do not want, life- sustaining treatment, including artificially administered food and liquid, if you become incapacitated.


b. You may also name a health care proxy, who may make medical decisions for you, if you become incapacitated.


2. Sign the form in the presence of two witnesses, who are not related to you, and are not entitled to inherit property from you.

3. The living will is a legally binding document, and state law requires medical personnel to follow it.

I will explain this process in more detail, below.

Many of my clients have asked: What is a living will? How can I make a living will? Do I need a living will?


What is a Living Will?

In Oklahoma, an advance directive is a document in which you specify what your wishes are, in the event that you become incapacitated, and unable to make decisions regarding your health care. Oklahoma recognizes two types of advance directives:

  • The Living Will

  • The Appointment of Health Care Proxy

The Living Will


A living will is a document in which you state, that if you have

  • a terminal condition, or

  • are persistently unconscious, or

  • have and end-stage condition,

that you either want, or do not want, life-sustaining treatment, and that you either want, or do not want, artificially administered food and liquid.


When you make a living will, you have the choice as to what you want to specify. You may say that you do not want life-sustaining treatment, and that you do not want artificially administered food and liquid. You may say that you do not want life-sustaining treatment, but that you do want artificially administered food and liquid. Or, you may say that you want both life-sustaining treatment, and that you want artificially administered food and liquid. (Some attorneys refer to the latter type of living will, in which you state that you want life-sustaining treatment, and food, and liquid, as a “Will to Live.”)


You may also specify other types of requests in your living will.


The Appointment of Health Care Proxy


In an appointment of health care proxy, you designate a person who will have the authority to make medical decisions on your behalf, if you become incapacitated and cannot make medical decisions yourself.


How to Make a Living Will


In Oklahoma, to create an advance directive, you must use a form written by the Oklahoma State Legislature. That form is available here. Print this form, fill it out, and sign it in the presence of two witnesses who are eighteen years of age, are not related to you, and have no right to inherit property from you.


NOTE: Although the Oklahoma Legislature provides this form free of charge, and anyone over 18 may execute a valid living will by filling out this form, I strongly urge you not to execute a living will or advance directive without consulting an attorney first. If you make any mistakes in the execution of a living will, you can create serious problems for yourself and your love ones. Your time of serious illness will be stressful enough; don’t add to the stress. You may not understand certain terms used on the living will. Make sure you talk to an attorney competent in matters of estate planning.


Durable Powers of Attorney


Closely related to the topic of living wills, is the durable power of attorney. A durable power of attorney (DPOA) is a document, in which you name an attorney-in-fact, and give this person power to make decisions for you in the event of your incapacity. Your attorney-in-fact may make decisions regarding your person – such as your residence, and your medical care. However, a DPOA cannot empower your attorney-in-fact to make decisions regarding life-sustaining medical treatment, unless the DPOA complies with the advance directive form created by the state legislature. A DPOA may also empower your attorney-in-fact to manage your property, and make decisions regarding your property. Thus, a DPOA gives your attorney-in-fact considerably broader authority that an advance directive. For this reason, many people who create an advance directive, also find it useful to create a DPOA at the same time. After all, if you become incapacitated, you want your property to be taken care of.


The Oklahoma State Legislature has not made available forms for a DPOA. If you need to create an advance directive, consult an attorney.


Conclusion


In the past, wills were only used to specify what would happen after a person passed away. In the latter part of the twentieth century, states began to realize that people not only needed documents to prepare for their death; they also needed legally binding directives to take care of themselves and their property if they were still alive, and not capable of making decisions for themselves. Thus, living wills, advance directives, and DPOAs were born. Most states have passed laws specifically authorizing such documents, and requiring medical personnel to abide by the wishes that the person expresses.

Thus, a living will, advance directive, or DPOA, can be a wonderful tool. The Persaud Law Office can help you with drafting these documents. If you feel that it is time for you to plan your estate in this manner, please feel free to give us a call.

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