Creating a Living Will

Most wills take effect as soon as a testator passes away. There is, however, a different type of will, known as a living will, that becomes effective prior to death. These types of testamentary documents are most often used in situations where a person has become too ill to make his or her own medical decisions. Like standard wills, living wills must be executed according to certain procedures in order to be considered valid, so if you or a relative have questions or concerns about creating your own living will, it is important to contact an experienced estate planning lawyer who can walk you through the process.

Effect of a Living Will

In Illinois, living wills can only be used to express a person’s end-of-life preferences. This means that if a person is suffering from a terminal illness and is no longer able to make rational or lucid decisions, a living will can ensure that death-delaying procedures, such as life support, are not used to prolong his or her life. Other procedures that fall under this category, include:

  • Assisted ventilation;
  • Artificial kidney treatments;
  • Intravenous feeding or administration of medication; and
  • Blood transfusions.

Absent from this list, however, are procedures intended to provide for a patient’s comfort or to alleviate pain.

To qualify as a terminal condition, an illness must be incurable, irreversible, and result in imminent death, where the use of death-delaying procedures would only prolong the dying process.

Legal Requirements

To create a valid living will, the declarant must satisfy specific conditions, including that:

  • He or she is of sound mind and over the age of 18 years old;
  • The document is signed by the declarant or another person at the declarant’s direction;
  • The will is signed by two witnesses, both of whom are over the age of 18 years old; and
  • He or she notifies the attending physician of the effect of the will.

Finally, a pregnant person is not permitted to create a living will.

Revoking a Living Will

Some people may have a change of heart and wish to revoke a living will. In these cases, the declarant can revoke a will through one of a specific set of actions, including:

  • By obliterating, burning, tearing, defacing, or otherwise destroying the living will in a manner indicating the declarant’s intention to revoke;
  • By a written revocation signed and dated by the declarant; or
  • By an oral or other expression of an intent to revoke the living will made by the declarant in the presence of a witness who is over the age of 18 years old and who subsequently signs and dates a writing confirming the exchange.

A revocation will become effective upon communication to the declarant’s attending physician, who is then required to record the date and time that he or she received the notification.

How an Experienced Estate Planning Lawyer Can Help

If you live in Evanston, Glencoe, Glenview, Highland Park, Northbrook, or Skokie and are interested in creating or revoking a living will, please contact Orlowsky & Wilson, Ltd. Attorneys at Law by calling 847-325-5559 and a member of our dedicated legal team will help you schedule an initial consultation with an experienced estate planning attorney who can explain your legal options.

Updated as of July 2019
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