After you complete your health care directive, you must follow your state’s rules about how to make it legally valid and binding. All states require you to sign your document, or have someone sign on your behalf. And depending on the state, you must also have your document witnessed and notarized – and in some states both.
Read on for details about these signing requirements and about what your state will require you to do.
Signing Your Documents
Every state requires that you sign your documents—or direct another person to sign them for you. But do not sign them immediately. You must sign your documents in the presence of witnesses or a notary public—sometimes both, depending on state law. That way, there is at least one other person who can attest that you were of sound mind and of legal age when you made the documents.
If you are helping someone else prepare health care documents and that person is too ill or weak to sign them, you or another person may sign the documents at his or her direction. The person making the document and the signer should appear together in front of the witnesses and/or notary public (see below), so that someone can observe the signing and confirm, if it is ever necessary, that it is what the document maker wanted and directed.
Witnessing and Notarization
In most states, witnesses must sign your documents. In some states, you may have your documents notarized instead of witnessed. In others, you will be required to have both witnesses and a notary sign your document. Also, a few states have different requirements for the document directing your health care and the document naming your agent. See below for links to your state’s rules.
Many states require that two witnesses see you sign your health care documents and that they verify in writing that you appeared to be of sound mind and signed the documents without anyone else influencing your decision. Each state also has rules about who may serve as your witnesses. In many states, for example, a spouse, another close relative or any person who would inherit property from you is not allowed to act as a witness for the document directing health care. And many states prohibit your attending physician from being a witness. The goal of these laws is to be sure your witnesses do not have a personal or professional interest in your health care and, therefore, a conflict of interest.
A notary public is an individual who is authorized by the state to verify signatures on documents. If your state requires notarization, you shouldn’t have any trouble finding a notary. You can find listings online or in the yellow pages. Many hospitals also have notary publics on staff. Depending on your circumstances, you may take your document to the notary, or the notary may come to you. The notary will watch you sign the document and may then sign the notary language on the form or fill in a separate form and attach it to your document.
Be prepared to show the notary some identification and to pay a small fee for the services. If you are a patient in a hospital, the service may be free of charge.
When you read the requirements for witnesses in your state (see links below), you may find some unfamiliar words. Here are brief definitions of some terms that commonly occur.
- Beneficiary. Any person who is entitled to inherit property from a deceased person.
- Beneficiary of a will. Any person or organization named in a will to receive property, either as a first choice or if the first choice as beneficiary does not survive the person making the will.
- Claim against the estate. Any right that a person has to receive property from a person’s estate. This may arise under a will or living trust, from a contract or because of a legal liability that the deceased owes to the person.
- Devisee. Any person who either is entitled to inherit property from a person under state law or who has been named to inherit property in a will or living trust.
- Heir at law. Any person who qualifies to inherit property from a person under state law. Usually, heirs at law are spouses, children, parents, brothers and sisters. However, if none of these people exist, an heir at law might be a niece, a nephew or even a distant cousin.
- Inherit by operation of law. When a person dies owning property that has not been left by a will or by some other legal device such as a living trust, the property will be distributed according to the laws of the state where the person died—that is, by operation of law. These laws—commonly referred to as the “laws of intestate succession”—usually give property first to a spouse and children and then to parents, brothers and sisters.
- Presumptive heir. Someone who would inherit property under state law unless a child was later born to the current owner of the property the presumptive heir expects to receive.
Your State’s Rules
Click on the links below to learn your state’s rules about finalizing a health care directive.
Learn more about health care directives on the Living Wills & Medical Powers of Attorney section of Nolo.com.
With Nolo’s Quicken WillMaker Plus, you can make a health care directive that conforms to the laws of your state. WillMaker health care directives print out with clear, plain English instructions about how to finalize your document to make it legal and binding.