Living will vs healthcare proxy: which do I actually need?

The short answer is: both. Most people think they need a living will, find a free state form online, fill it in, and call it done. They have done half the work. The other half is the healthcare proxy, and it is usually the more important half.

Here is the difference, in language that does not require a law degree.

The living will

A living will is a document where you write down, in advance, what medical treatments you would or would not want if you could not speak for yourself. The classic checklist:

• Do you want to be put on a ventilator if you cannot breathe on your own?
• Do you want a feeding tube if you cannot eat?
• Do you want CPR if your heart stops?
• Do you want kidney dialysis?
• Do you want antibiotics for new infections?
• Do you want to be an organ donor?
• Do you want comfort measures only (sometimes called “comfort care”) or all available treatments?

You write the answers down. You sign it. Two adult witnesses sign it. In some states a notary signs it. Done.

The living will sits in a folder until the day comes when it might be needed. If that day comes, doctors look at the document and follow what it says.

The healthcare proxy

A healthcare proxy (sometimes called a healthcare power of attorney, healthcare agent, durable power of attorney for healthcare, or healthcare surrogate, depending on your state) names a specific human being to make medical decisions for you when you cannot.

The proxy is not bound by your living will. The proxy uses it as guidance. The proxy makes the decisions the living will did not anticipate, which turns out to be most of them.

Why you usually need both

Most living wills cover three or four scenarios. Real medicine throws fifty. A living will tells the doctor whether you want a feeding tube. It does not tell the doctor whether you want a feeding tube for two weeks while we see if you wake up or permanently because the brain damage is irreversible. The proxy figures out the difference.

A few real examples from the people who taught us this.

Sarah’s mother, 82, had a stroke in Cleveland in 2022. Her living will said no heroic measures. The hospital wanted to know whether IV fluids and oxygen were “heroic”. Her living will did not address it. Her proxy (Sarah, the daughter) did, by saying yes to fluids and oxygen, no to a ventilator, and asking that comfort be the priority. The hospital agreed within an hour. Without a proxy, Sarah’s mother would have lingered through several rounds of escalating intervention because no document spoke for her in that exact situation.

David’s father, 71, was diagnosed with end-stage cancer in Phoenix. His living will said no resuscitation. He developed a treatable pneumonia. The living will would, read literally, have meant no antibiotics. His proxy (David’s brother) authorised antibiotics, his father recovered, and lived another seven months at home with his grandchildren. The pneumonia was not what the living will was written for. The proxy knew that, and the proxy is what kept his father alive long enough to say goodbye properly.

The pattern is the same. The living will sets the direction. The proxy reads the situation.

The five questions to ask your proxy before you sign

Pick a person. Have a conversation with them, in person, before you write their name on a form. These five questions are the ones we ask everyone:

1. If I were unconscious and the doctors said I had a 30% chance of waking up, would you want to wait? This is the most common scenario in the ICU. Most people imagine “do not resuscitate” means “let me die immediately”. It almost never does.

2. If I were diagnosed with advanced dementia and I stopped being able to recognise you, what would you do? Many state living wills now include a dementia section. If you have strong feelings, talk about them.

3. If I were dying and visibly suffering, would you authorise enough morphine to ease the pain even if it might hasten death? This is sometimes called the “double effect” question. Many doctors will not bring it up. Your proxy may have to.

4. If I were brain-dead but my body could be kept going, would you donate organs? Organ donation has a small window after death. The proxy is who is asked.

5. If we disagreed, would you do what I asked, or what you thought was right? Both answers are reasonable. You need to know which one you have.

The conversation will be uncomfortable. Have it anyway. People who have had it report being closer to their proxy afterwards, not further apart.

How to actually do it this weekend

Both documents, signed and witnessed, in one sitting:

• Search “[your state] advance directive form”. Your state Department of Health publishes a free PDF. The CaringInfo project of NHPCO has the same forms in one place if you prefer.
• Most state forms include both a living will section and a healthcare proxy section on the same page.
• Pick a primary proxy and a backup proxy. The backup is who acts if your primary cannot be reached. Different person, ideally.
• Have the two witnesses sign in front of you. They cannot be your proxy, your blood relatives, or anyone in your will. Most states require two; a few require a notary as well.
• Make copies. Give one to your primary proxy, one to your backup, one to your primary care doctor’s office, one to your local hospital if you have a regular one, and keep the original somewhere your family can find it. Not a bank safe deposit box; those are sealed at death.
• If your state has an electronic registry (Vermont, Idaho, Arizona, Maryland, several others), upload it.

That’s it. A weekend afternoon. Almost certainly free. The most useful piece of paper you will ever sign.

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What this guide gets wrong

A POLST (Physician Orders for Life-Sustaining Treatment, sometimes MOLST or POST depending on state) is a related but different document: a medical order signed by you and your doctor, used near the end of life, when an advance directive becomes too abstract. We have not covered it here because most healthy adults under 70 do not need one. People in their last year of life often need both.

We also did not get into mental-health advance directives, which let someone with a chronic mental health condition specify treatment preferences in advance of a crisis. About half of US states recognise these as separate documents. If that applies to you or someone you love, ask a mental-health attorney in your state.

State laws on witnesses, notarisation, and digital signatures changed substantially in 2020–2022 and will probably change again. The version of your state’s form on this page may be outdated by the time you read it. Always download fresh from your state’s Department of Health website on the day you sign.