State-Specific Requirements for Advance Directives
Advance directives are legal documents that help you plan and communicate your wishes regarding your medical care should you ever be in a situation where you are unable to do so. The actual documents may have different titles in different states. In general, however, advance directives are usually comprised of two documents. One, commonly called a living will, describes your wishes regarding medical treatment. The second, usually called a medical health care power of attorney or health care proxy, appoints a person to make medical decisions on your behalf. Again, both of these documents are only used when you are unable to make decisions yourself.
There's a common misconception that only people who are elderly need advance directives. Unfortunately, however, there are many misfortunes that can cause one to be unable to dictate one's own health care. All adults should consider having advance directives in place so that they are able to indicate their health care wishes and spare their loved ones unnecessary anxiety in times of medical crisis.
The table below provides a general overview of advance directive information by state. It is not all-encompassing and should not be used in place of legal advice or without a more thorough review of your state's guidelines. While some state statutes do not require witnesses, it is considered a good idea to have witnesses in order to ensure that your wishes are carried out.
| State | Statute |
|---|---|
| Alabama | Advance directive for health care (encompasses living will, health care proxy, and durable power of attorney) requires an individual to be at least 19 years of age and requires two qualified witnesses. Advance directives are not valid if pregnant. |
| Alaska | A living will (called "Individual Instruction for Health care") needs no witnesses. A health care proxy requires either two qualified witnesses or must be acknowledged before a notary public in the state of Alaska. Individual instructions may not be honored if pregnant. |
| Arizona | A qualified witness or notary is required for a living will, as well as for a health care power of attorney (proxy). Directives are not valid if pregnant. |
| Arkansas | A declaration (both living will and health care proxy) requires two qualified witnesses. The declaration may not be valid if pregnant. |
| California | Instructions for health care and the health care power of attorney require two qualified witnesses or a notary public. |
| Colorado | A declaration (living will) requires two qualified witnesses. A power of attorney for health care does not require witnesses. The declaration is invalid if physician determines that a pregnant woman's fetus is viable. |
| Connecticut | Health care instructions (both living will and health care proxy) require two witnesses (witnesses are encouraged to have a Witness Affidavit notarized). Instructions are invalid if pregnant. |
| Delaware | Instructions for health care (living will) and health care power of attorney require two qualified witnesses. Notarized declarations are recommended. A living will may be invalid if pregnant. |
| District of Columbia | A declaration and a health care power of attorney require two qualified witnesses. |
| Florida | Two qualified witnesses are needed for both a living will and a designation of health care surrogate. Women wishing to refuse life-sustaining treatment while pregnant must put in writing on the health care surrogate form that they authorize the surrogate to follow their instructions regarding treatment while pregnant. |
| Georgia | An advance directive (treatment preferences and healthcare agent) requires two qualified witnesses. Women wishing to refuse life-sustaining treatment while pregnant must indicate this on the form. However, if a physician determines that the fetus is viable, this preference becomes invalid. |
| Hawaii | Instructions for health care and health care power of attorney require two qualified witnesses or the signature of a notary public. |
| Idaho | No witnesses or notarization are required for a living will or a health care power of attorney. A living will is invalid if pregnant. |
| Illinois | A power of attorney for health care requires one qualified witness. A living will declaration requires the signature of two qualified witnesses and may be invalid if pregnant. |
| Indiana | The power of attorney for health care decisions must be signed by notary public. The Health Care Representative directive must be witnessed by one adult.The Living Will Declaration and the Life-Prolonging Procedures Declaration each require two witnesses. A living will is invalid if pregnant. |
| Iowa | The power of attorney for health care and the declaration (living will) must be signed by a notary public or two qualified witnesses. |
| Kansas | The living will and health care proxy forms require the signature of two qualified witnesses or a notary public. Both may be invalid if pregnant |
| Kentucky | A living will and an appointment of health care surrogate require two qualified witnesses or a notary public. Both may be invalid if pregnant. |
| Louisiana | The declaration and health care power of attorney require two qualified witnesses. Individuals may register the form with the Secretary of State's office. |
| Maine | The instructions for health care and the power of attorney for health care require two witnesses. The form also allows an individual to designate a physician to have primary responsibility for health care. |
| Maryland | Advance medical directive instructions and the appointment of a health care agent require two qualified witnesses. Documents may be written or electronic. There is a section to include special instructions in the event of pregnancy. |
| Massachusetts | A health care proxy requires the signature of two qualified witnesses. There is no state statute regarding a living will. |
| Michigan | The designation of a patient advocate for healthcare requires two qualified witnesses. A patient advocate does not have the right to make decisions regarding a pregnant patient that could result in the pregnant patient's death. There is no state statute regarding living wills. |
| Minnesota | The appointment of a healthcare agent and healthcare instructions requires two qualified witnesses or the signature of a notary public. Women must explicitly state if they would like the instructions honored if they are pregnant. |
| Mississippi | The power of attorney for health care and the instructions for health care require two qualified witnesses or a notary public. |
| Missouri | The durable power of attorney for health care requires a notary public; it must specifically state the authorization of the withdrawal of nutrition and hydration. The declaration (living will) requires two qualified witnesses; it is invalid if pregnant. |
| Montana | The appointment of a health care agent and a declaration each require two qualified witnesses. Both are invalid if a woman is pregnant and the fetus is determined to be viable with continued life-sustaining treatment. |
| Nebraska | The power of attorney for health care and the declaration each require two qualified witnesses or a notary public. Both are invalid if a woman is pregnant and the fetus is determined to be viable with continued life support. |
| Nevada | The power of attorney for health care decisions requires two qualified witnesses or a notary public. The declaration requires two witnesses and will be invalid if it is determined that a pregnant woman's fetus is viable with continued life-sustaining treatment. |
| New Hampshire | The durable power of attorney for health care and the declaration (living will) each require a notary public, justice of the peace, or two qualified witnesses. The statement must state explicitly if medically administered nutrition and hydration are wanted. A health care agent cannot consent to withdrawal of treatment if the patient is pregnant and if the withdrawal of that treatment is deemed likely to terminate the pregnancy, unless the treatment will be physically harmful to the patient or prolong severe pain which cannot be alleviated by medication. |
| New Jersey | The appointment of a health care representative and the living will each require two qualified witnesses, a notary public, an attorney at law, or another person authorized to administer oaths. An option to provide specific instructions for treatment if pregnant is included. |
| New Mexico | The power of attorney for health care and the instructions for health care require no witnesses. |
| New York | The health care proxy requires two qualified witnesses. The living will has no specific requirements. |
| North Carolina | The health care power of attorney and the advance directive for a natural death (living will) require two qualified witnesses and a notary public. The Secretary of State maintains a registry where both documents can be filed. |
| North Dakota | The statutory health care directive (encompassing both the health care agent and the living will) requires two witnesses or a notary public. |
| Ohio | The durable power of attorney for health care and the living will require two qualified witnesses or a notary public. Both may be invalid if pregnant. The living will declaration supersedes the power of attorney for health care if there is any conflict. |
| Oklahoma | The advance directive for health care (includes living will and health care proxy) requires two qualified witnesses. The directive is invalid if pregnant unless a woman has specifically authorized the withholding of treatment if she is pregnant. Individuals must specifically state if artificial nutrition or hydration is not authorized. |
| Oregon | The appointment of a health care representative and the health care instructions (living will) each require two qualified witnesses. Individuals must specifically indicate if the health care representative is authorized to withhold artificial nutrition and hydration. |
| Pennsylvania | The directive includes both the living will and the appointment of a healthcare agent and it requires two qualified witnesses. The directive may be invalid if pregnant. |
| Rhode Island | The durable power of attorney for health care requires two qualified witnesses or a notary public. The declaration (living will) requires two qualified witnesses. Both may be invalid if pregnant. |
| South Carolina | The health care power of attorney requires two witnesses. The declaration of desire for a natural death (living will) requires two qualified witnesses and a notary public (notary may be one of the witnesses). Both may be invalid if pregnant. |
| South Dakota | The power of attorney for health care requires two adult witnesses or a notary public. The directive may be invalid if pregnant and must specifically express in the document if artificial nutrition and hydration are not authorized. The living will declaration requires two adult witnesses and may be invalid if pregnant. If an individual has executed both a declaration and a durable power of attorney, the later executed document will supersede to the extent that there are conflicting provisions. |
| Tennessee | The appointment of a health care agent and the advance care plan (living will) each require two qualified witnesses or a notary public. |
| Texas | A medical power of attorney and the directive to physicians and family or surrogates (living will) each require two qualified witnesses. Both may be invalid if pregnant. |
| Utah | The advance health care directive (encompasses both the appointment of a surrogate decision maker and a living will) may be oral or written and requires one qualified witness. Both may be invalid if pregnant. |
| Vermont | The advance directive (encompasses both the living will and a health care agent) requires two qualified witnesses. An option is available to have the directive scanned into a state computerized databank. Individuals also have the option to provide specific instructions for treatment if pregnant. |
| Virginia | The advance medical directive (including both a living will and a health care proxy) requires two adult witnesses. The directive provides the option to file with a state online registry; however, the document must be notarized in order to be included in the Virginia Advanced Health Care Registry. |
| Washington | The health care directive (living will) requires two qualified witnesses; it is invalid if pregnant. The durable power of attorney for health care must be notarized. |
| West Virginia | The living will and the medical power of attorney each require two qualified witnesses and a notary public. |
| Wisconsin | The power of attorney for health care and the declaration to physicians (living will) each require two qualified witnesses. Both may be invalid if pregnant. |
| Wyoming | The power of attorney for health care and the instructions for health care each require two witnesses or a notary public. |
Hoarty, C. & McLamb, K. (Reviewed 2017). State-specific requirements for advance directives or living wills. Raleigh, NC: Workplace Options.