What is a Living Will?

A living will is a legal document written to dictate a person’s end-of-life wishes regarding their medical care if they become permanently unconscious or terminally ill and unable to communicate their own medical decisions. For example, if an individual suffers an event that leads to a permanent vegetative state.

This document contains special instructions on life-sustaining treatments, healthcare preferences, and critical decisions concerning a prolonged dying process. A living will is addressed to the individual’s (declarant) primary care physician or healthcare professionals and included in the patient’s permanent medical record.

Under Ohio Codes or Modified Uniform Rights of the Terminally Ill Act (MURTIA), any adult (18 years or older) of sound mind can create a Living Will Declaration. The provisions, statements, and terminologies in the living will should be consistent with those in the Code to be considered legally binding. Additionally, it should include the declarant’s signature duly acknowledged by a notary public or witnessed by two eligible adults.

Advance Directive vs. Living Will: What’s the difference?

Generally, advance directives are legal documents that individuals create to instruct physicians and family members about their healthcare wishes in case of any incapacitating event. In Ohio, advance directives include do-not-resuscitate (DNR) orders, living wills, healthcare power of attorney, and anatomical gifts (organ donation).

Therefore, a living will is a form of an advance directive with specific medical instructions directed toward end-of-life wishes. A living will can also include CPR or anatomical gift instructions and designate a healthcare power of attorney.

Why Would You Need Living Wills in Ohio?

Benefits of having a Living Wills in place

Just as a Last Will and Testament outlines one’s wishes concerning asset distribution and saves loved ones the stress and conflict that may arise without one, having a Living Will helps loved ones and physicians know your healthcare wishes and provides the following benefits:

• Allows the declarant to state his medical wishes despite being in an incapacitating state and decide what treatment to try or stop under certain circumstances
• Saves loved ones from the stress or burden that may arise when deciding whether or not to continue life-prolonging treatment despite being in a permanently unconscious state or terminal condition
• Prevents families from dealing with the major financial burden that may come with prolonging the dying process
• Protects family and healthcare professionals who make critical end-of-life decisions
• Saves loved ones from conflict, legal disputes, waiting periods, and the otherwise stressful process of removing life support without living wills
• Protects the patient and loved ones from a prolonged and agonizing existence

Potential risks of not having a Living Wills

In cases where an incapacitated patient has no living will, there may be:

• Increased medical expenses
• Family disputes concerning what the patient’s wishes are and whether to continue or withdraw life-sustaining treatments
• Several long and stressful processes to follow to remove life supports and, by extension, means more time spent keeping the patient in an agonizing state
• Legal suits, which are also costly and time-wasting

Examples of situations where a Living Wills can be useful

Living wills can be useful when persons have been diagnosed with a terminal disease or if a person is aged and dealing with rapidly deteriorating health issues. Examples of medical situations where having a living will may be helpful include:

• Persistent vegetative state or permanent comas
• Severe dementia or Alzheimer’s
• End-of-stage conditions like advanced cancer, lung, or heart disease
• Neurological or motor-neuron diseases
• Multiple organ failure

However, individuals can create living wills in good health to protect one's wishes in an unforeseen situation.

When Does a Living Will Take Effect in Ohio?

In Ohio, a living will becomes legally binding if created in line with state laws and signed by the adult declarant in the presence of a notary public or two eligible witnesses. The declarants can then provide copies to their primary healthcare physician or facility to inform them of their wishes. Even living wills created in other states are considered valid if they fulfill the requirements in the Ohio Code.

However, the living will does not become effective, operative, or applicable unless the declarant is deemed to be in a “permanent unconscious state” or “terminal condition” and unable to make decisions as defined by the Ohio Code. The attending physician and one other specialist physician must do this by:

• Examining the patient;
• Determining that there is no reasonable possibility for the patient to recover the ability to make informed decisions and;
• Stating the conditions met when determining this.

In Ohio, a living will has no expiry date and remains valid until revoked by the declarant. Declarants can do this by simply informing their family or doctors about the change of mind and asking them to remove the copy from their medical record and return it. Also, creating a new living will automatically revoke the older one unless specified otherwise.

How to Get Living Wills in Ohio

Legal requirements for creating and executing a Living Wills in Ohio.

To create living wills in Ohio, interested persons must be at least 18 years old and be of sound mind. The declaration must also substantially comply with the MURTIA standards and terminology provisions. The individual must execute the will by signing and including the date in the presence of a notary public or two witnesses who must not be:

• Related to the declarant by blood, adoption, or marriage
• An agent in the declarant’s health care power of attorney
• The declarant’s guardian or guardian or estate
• Any alternate guardian or agent, if any
• An attending physician or nursing home administrator
• Under 18 years of age.

Potential fees and costs associated with creating a living will.

The cost of creating a living will in Ohio depends on several factors, including:

• Notary fees if the declarant wishes a notary public to sign
• Legal charges if the declarant is hiring an attorney to draft the living will
• Registration fees if the declarant chooses to register their living will with their County Recorder

Creating a Living Will Declaration in Ohio should generally be cheap if an individual uses the free, standard forms provided by Probate Courts, County Recorders, hospitals, and other third parties. However, individuals who require personalized declarations that meet the legal standard may have to consult with or hire attorneys to help draft the document. For instance, the standard forms may not serve persons who want the physician to do everything possible to keep them alive until after a specific period.

Notary fees typically range from $5 to $10, whereas the legal cost for drafting living wills ranges from $200 to $500. Additionally, each County Recorder has a different fee for registering living wills. For instance, the Franklin County Recorder charges $40, whereas the Montgomery County Recorder charges $34 for the first two pages and $8 for each additional page.

Available resources for creating a living will

Individuals can find the following resources online to create a living will at a low cost:

• Fillable living will forms, templates, and self-help forms
• Packets that include forms for health care power of attorney, living will, and donor registry enrollment
• Professional or online legal services, which may be free or discounted
• Guided tutorials

Preparing a Living Will: How to Write One in Ohio

In compliance with state laws, a living will declaration in Ohio must include the following:

• A statement governing the use, continuation, withdrawal, or withholding of life-sustaining treatment using the terms “terminal condition” or “permanent unconscious state” or explaining these terms in a way that complies with the code
• Any specific CPR instructions
• Any nutrition and hydration instructions written in capital letters or conspicuous type
• Any designation of one or more persons to be notified before life-sustaining treatments are withdrawn or withheld
• Signature and date at the end of the declaration by the individual or another person at the direction of the declarant, followed by the signature of two eligible witnesses or a notary public attesting that the declarant is of sound mind

On a standard form, individuals should:

• Write full names and birth dates on the declaration
• Indicate whether you prepared a health care power of attorney by ticking a box
• List individuals to be notified before life-sustaining treatments are withdrawn or withheld
• If necessary, fill the boldface section on withholding artificial nutrition and hydration and include initials in the box beside this section.
• Sign the declaration with eligible witnesses or a notary public, and input required details like dates and addresses.

After executing the living will with the needed signatures, declarants should provide copies to their physician to be included in their medical records. In some counties, declarants may register their living wills with the County Recorders for a fee. However, note that this will make it a public record.

How often must I update my Living Wills?

Legal requirements for updating a Living Wills in Ohio

Ohio residents can update their living will declarations by creating new ones, automatically revoking any older will unless specified otherwise. However, the Ohio Code does not mandate that persons update their living wills regularly. Unless the declarant revokes the entire will or makes a new declaration, a living will shall remain valid no matter how old it gets.

Factors that may necessitate updating a living will

Individuals can update their living will declaration if there is a change of mind concerning their medical wishes or using, withholding, or withdrawing certain life-sustaining treatments. For instance, reviewing a living will may be necessary in the following circumstances:

• Change in financial circumstance: This may affect how much or how long a treatment can go on or increase one’s chances to explore other possible treatments
• Moving to a new state: Moving residency to another state may require declarants to consider that state’s living will law and update the declaration accordingly.
• Change in principal’s health: An improving or deteriorating condition can make one rethink decisions, increase one’s hope for recovery, or change plans in regards to organs to donate for transplant or other purposes
• Additional directives: Individuals who later decide to add new instructions or complete a Healthcare Power of Attorney may consider filing a new living will declaration that includes this information
• Recent discovery or development: A new medical or personal discovery can affect one’s living will. For instance, a divorced declarant may have to remove a spouse listed as a guardian.

Recommendations for reviewing and updating a living will

When reviewing and updating a living will in Ohio, it is important to consider all life-sustaining treatments and other forms of advance directives or optional instructions like healthcare power of attorney, special instructions for artificially provided foods and fluids, and organ donation. Understanding all options and making decisions accordingly will reduce the chances of constant updates.

Do I Need a Lawyer to Create a Living Will in Ohio?

Individuals do not need a lawyer to create a living will in Ohio. Fillable forms and templates are available online that can help one draft a living will, and establishing the will requires no legal action. However, some people may seek medical advice or hire a lawyer to understand life-sustaining practices and draft a living will that covers all their wishes and needs.

What’s the Difference between a Living Will and a Medical Power of Attorney?

A medical or health care power of attorney in Ohio designates an agent to make medical decisions for an individual (principal) if he or she becomes temporarily unconscious or cannot make decisions concerning their health. On the other hand, a living will only specify a person’s (declarant)end-of-life wishes if in a permanent unconscious state or terminal condition.

A living will dictates the use, withdrawal, or withholding of certain life-sustaining treatments. In contrast, a medical power of attorney can be used in any medical emergency when the principal cannot decide for himself. However, in a case where someone has both types of advance directives, the living will take precedence over the medical power of attorney if the declarant enters a permanent unconscious state or terminal condition.

Can a Living Will Be Broken?

Yes, a living will can be broken or revoked in Ohio. Declarants can revoke their living will by expressing their desire to cancel or nullify the will to a witness and attending physician. A revocation is also effective when a witness communicates the declarant’s intention to the physician or other healthcare personnel.

Also, creating a new living will automatically revoke the older one unless specified otherwise. Furthermore, a physician cannot withdraw or withhold life-sustaining treatments from a pregnant declarant if this will lead to the death of a fetus.

As per section 2133-05 of MURTIA, a person notified by a physician that a living will declaration has become operative can oppose the physician’s determinations for the following reasons:

• The declaration does not comply with state provisions;
• The declarant was not of sound mind when executing the living will;
• The attending physician proposed a course of action not permitted under the MURTIA provisions.

The objecting individual should notify the physician within 48 hours of receiving the notice of the physician’s determination and file a complaint with the Probate Court of the County. The complainant may receive a court order invalidating the declarant or authorizing reevaluation.