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What Is a Living Will?
In a Living Will, you state your wishes for the kinds of medical treatment you do or don't want if you become seriously ill or injured and unable to speak for yourself. The document may go by another name in your state, such as "Advance Directive" or "Declaration," but most people (and any health care provider) will know what you mean if you say "Living Will."
A Living Will doesn't have anything to do with the kind of will or trust you use to leave property to others when you die; it's exclusively a place to write down your health care wishes.
When Your Living Will Takes Effect
Your Living Will becomes effective only if doctors determine that you can no longer make your own health care decisions. This condition is often called "lacking capacity." If you lack capacity, it means you are unable to:
understand the nature and consequences of the medical treatment options available to you, or
communicate what you want, either by speaking, writing, or gesturing.
Essentially, if you are so sick or injured that you can't convey your health care wishes in any way, your Living Will immediately becomes a guide for your loved ones and health care providers.
If there is any doubt about whether you can understand and express your treatment choices, your doctor (after talking with your health care agent or family members) will decide whether your Living Will should take effect.
Must Doctors Follow Your Instructions?
Medical professionals must usually do all they can to follow the directions you give in a Living Will.
In limited situations, a doctor or hospital will be permitted to deny your wishes. This may happen if:
you have asked for care that the health care provider believes would result in medically ineffective treatment or treatment that violates generally accepted standards of medical care
your instruction goes against the conscience -- for example, violating a religious belief -- of the health care provider, or
your instruction runs counter to a policy of the hospital or other care facility that is based on reasons of conscience.
Still, a health care provider cannot simply ignore your Living Will. A doctor or hospital who won't follow your instructions must promptly inform you or the person in charge of your health care decisions, and must try to transfer you to a provider that will honor your instructions. (In many states, this rule doesn't apply to pregnant women; see What Happens to My Living Will If I Am Pregnant?)
If illness or injury prevent you from directing your own health care, someone must step in to speak for you. Your health care representative will be responsible for working with doctors to make the best treatment choices for you, following any guidance you’ve left in a Living Will or other document -- or simply making choices based on your representative’s best understanding of what you would want.
Who Makes Your Medical Decisions If You Can’t
Unless you make a document naming your health care representative, state law says who will get this very important job -- usually it will be your spouse, children, parents, or other closest family members. To minimize possible conflicts and ensure your health care decisions are placed in the hands of the person you trust the most, you’ll want to prepare a Durable Power of Attorney for Health Care.
The document naming your health care representative may also be called a Medical Power of Attorney, Appointment of Health Care Proxy, Surrogate Designation, or something similar. The person you name as your representative is most commonly called your “health care agent,” though you may also terms like “attorney-in-fact,” health care proxy, or surrogate.
Your Health Care Agent’s Powers
When you make a Durable Power of Attorney for Health Care, you can give your agent as much or as little power as you choose. Ideally, you will name a representative who you trust enough to oversee all aspects of your medical care.
Normally, this means your agent will be allowed to:
consent to or refuse medical treatment to the same extent you could for yourself, with limited exceptions such as terminating a pregnancy, authorizing some psychiatric treatments, or going against any of your known wishes (unless you explicitly give your agent permission to override your previous instructions)
see your medical records
select or change your health care providers
choose the facilities where you will receive treatment
visit you at any time in any medical facility, or
go to court on your behalf, if a doctor or medical facility refuses to honor your documented wishes for care or the authority of your health care agent.
Giving Your Agent Additional Powers
A Durable Power of Attorney for Health Care begins when doctors determine you are no longer able to make your own health care decisions -- and it usually ends upon your death. However, in most states, you can give your agent the authority to handle some matters after your death. These powers may include making sure your organ donation wishes are carried out, authorizing an autopsy, or arranging the burial or cremation of your body. If you want your agent to handle any or all of these things for you, you should specifically address them in your power of attorney document.
Limiting Your Agent’s Authority
Many states publish Health Care Power of Attorney forms that invite you to limit your health care agent’s power in any way you wish. For example, someone who wants feeding tubes may state that their health care agent may not grant permission to have them withheld or withdrawn. Keep in mind that your agent is legally required to make health care decisions in your best interest and always in accordance with what your agent knows or believes you would want.
Because your medical needs may unfold in ways you can’t predict, you should give careful consideration to any limitations you place on your agent’s authority. The wiser approach may be to document your wishes for health care in a living will and have ongoing conversations with your agent about what you would and would not want, trusting your agent to respond as needed to whatever circumstances may arise in the future.
Health Care Agent, Proxy, or Surrogate: What's the Difference?
If you are no longer able to direct your own health care, someone else must speak for you. The person who works with your doctors and makes treatment decisions on your behalf may be called your agent, proxy, surrogate, or something similar.
What your representative is called depends on the state where you live and on whether or not you make a document -- called a Durable Power of Attorney for Health Care -- naming the representative of your choice.
In New Mexico, if you make a a Durable Power of Attorney for Health Care, the person who you appoint to make medical decisions for you is called your agent.
If you don't appoint your own representative, state law says who is responsible for making your treatment decisions. The person named by law is called your .
If a Court Gets Involved
If you become severely incapacitated and have not named someone to represent you, a court may appoint someone to manage all of your personal affairs, including your health care decisions. In New Mexico, this person would be called your .
Health Care By Zip Code endeavors to provide all the basic information you need to make documents directing your health care. That said, there may be a time when you want to confirm what you've learned or drill deeper into a specific legal issue.
You can find our database of New Mexico health care laws here.
About This Website
Here at Legal Consumer, we've been busy building websites to get people the answers they need about health care. Our goal is to guide you to reliable, local information about your health care options.
We'll be adding new topics over time, but you can currently use our health care websites to find comprehensive information on:
Living Wills and Advance Directives for Health Care (this website), and
On this website, when you choose your state or enter your zip code above, you will quickly learn:
how Living Wills, Medical Powers of Attorney, and other health care directives can help you keep your health care decisions in your own hands
what health care directives are called in your state
what your health care directives can cover
how to find the best health care directive forms for your state
We want to make it as easy as possible for you to learn how to provide legally binding health care instructions in case you are ever unable to speak for yourself.
Who We Are
Legal Consumer is a company that believes you should have access to quality information about the legal issues affecting your life. Whether you’re facing financial difficulties, health concerns, or trouble at your job, we want to help you find the resources you need. Our websites are written by lawyers and designed to give you accurate, relevant information for your location.
After receiving his J.D. from the University of Michigan Law School in 1985, Albin worked for various public-interest law firms in the Bay Area and as a staff attorney for Chief Justice Rose Bird of the California Supreme Court. He spent 17 years as an editor at leading do-it-yourself legal publisher Nolo, where he helped create numerous books and software programs, including the bestselling Quicken WillMaker. He also edited Law on the Net, the first online directory of legal resources, and was the architect of Nolo's Webby Award winning website.