Executing A Living Will and Other Advance Directives

When executing a living will and other advance directives, you must follow your state statutes. Each state sets out legal requirements in its statutes which must be met for the advance directive you signed to be considered legal. Generally speaking, when executing a living will and other advance directives, you must satisfy witnesses that you are competent; that you understand the decisions you are setting forth in the document.

Certain advance directives require more or additional witnesses than others. It is therefore, important that you check your state statutes to determine its requirements for each specific advance directive.

Sometimes, the statutes may be incomplete. For example, CT Statute 19a-575 seems to show two witnesses required, with nothing more. Other statutes, however, provide the legal requirements for execution.

For example, in Connecticut , while two witnesses are required for the living will and the Designation of Conservator in the Event of Incapacity, there is a critical difference:

The Designation of Conservator in the Event of Incapacity requires that the document be further acknowledged by another, independent person: A Notary Public or Commissioner of the Superior Court, must also take your acknowledgment, and the document must have been witnessed and executed in front of the Notary or Commissioner as well.

The Designation of Conservator in the Event of Incapacity must be executed with the same formalities as that of a Last Will and Testament in the State of Connecticut, pursuant to Section 45a-645 of the Connecticut General Statutes.

However, in Connecticut, when executing the Living Will, Power-of-Attorney, Designation of Health Care Agent in the Event of Incapacity, only two witnesses are required; and where a Notary Public or Commissioner of the Superior Court is required, that Notary or Commissioner may act as one of the witnesses as well. Although the execution of a Power of Attorney does require the acknowledgement of a Notary Public or Commissioner of the Superior Court, the Notary or Commissioner may also act as one of the witnesses.

Though certain states presently do not require a living will to be notarized (only witnessed); it is always recommended that, where possible, when Executing a Living Will, it be before a Notary Public.