Wills and living wills are both important estate planning terms, but they should not be confused. A last will and testament (a “will”) is the primary legal document of your estate plan. You can use a will to provide for the distribution of your assets after your death. This allows you to leave your real property and personal property to the individuals or entities of your choice. Further, you can name guardians for minor children in a will.

In contrast, a living will, also known as a health care directive, is a legal document that you use to describe your end-of-life treatment wishes to your medical providers. If you would prefer that your doctors withdraw life-sustaining medical care in the event of a terminal illness, you can make this clear in your health care directive.

You cannot use a will to specify your health care preferences. A will is only valid after your death. It cannot be used as a substitute for a health care directive. If you would like to create a document that provides instructions regarding your medical treatment, you can create a health care directive through FindLaw in about half an hour without needing to leave the comfort of home.

If you ever become terminally ill and do not have valid advance directives, Montana statutes describe who can make decisions on your medical procedures. The following individuals would make medical decisions for you, in this order:

1. Your spouse
2. Your adult children
3. Your parents
4. Adult siblings
5. The next closest relative

Creating a health care directive can remove the burden on your spouse and loved ones during a difficult time. Remember that these people will only make a health care decision for you if you receive a diagnosis of terminal illness and are incapable of giving informed consent for medical treatment. If you would rather make your own choices on your end-of-life medical treatments, you should create a health care directive that spells out your decisions. You can also name a health care agent through a power of attorney for health care. This allows you to empower one individual to make medical decisions on your behalf.

Yes, a health care directive from another state may be valid under Montana law. However, the out-of-state document must comply with the laws of that state and it must be substantially similar to Montana’s sample health care directive.

If you have just moved to Montana from another state, you should consider reviewing your estate plan, including your advance directives. Although your out-of-state advance directives might be valid in Montana, it’s a good idea to create a new health care directive that is tailored to Montana law.

Your advance directives do not go into effect simply because you endure a medical emergency or check into the hospital. An advance directive like a health care directive only becomes operative in a serious medical situation that meets all of the following conditions:

• The attending physician or advanced practice nurse knows about the advance directives;
• The attending physician or advanced practice nurse determines that you are in a terminal condition; and
• You cannot make informed decisions about your treatment.

These requirements establish a high threshold under Montana law before a health care directive becomes effective. Even in the event of a severe illness or injury, a health care provider should not act on the instructions in a health care directive if there is a good chance of recovery.

You can revoke your health care directive in any manner according to Montana statutes. Your physical or mental condition has no impact on your ability to revoke. To perform a legal revocation, you may choose to physically destroy your health care directive, create a new signed writing that revokes it, or make a verbal statement of your revocation.

If possible, it is best to perform a revocation through a new writing. For example, an effective way to revoke a health care directive is to create a new one.

If you revoke your health care directive while hospitalized, it is important that you communicate this fact to your attending physician or advanced practice nurse. Once you or a witness has informed them of the revocation, they have a legal duty to note this in your medical record.