Legal Service Developer Program
Advance Medical Directives
- Revocation of Declaration of Living Will form (Word)
- Revocation of Declaration of Living Will form (PDF)
The "Montana Rights of the Terminally Ill Act" (also known as the “Montana Living Will Act") allows individuals the maximum possible control over their own medical care and inevitable death. The law allows you to declare your intent not to have life sustaining treatment which only prolongs the process of dying. This Declaration becomes effective if your attending physician determines you have an incurable or irreversible condition that will result in death in a relatively short time.
The law provides immunity for physicians and facilities which carry out the provisions of the living will. It also provides a procedure which requires the physician who will not honor your living will to so notify you and transfer you to another physician who will comply with your wishes. There are provisions in the law which address revocation of the living will. You have the ability to revoke this declaration at anytime and in any manner. There are also provisions allowing you the option of designating another to make the decisions regarding withholding or withdrawal of life sustaining treatment.
If you do not write a living will, or you do not designate another to make these decisions, the law provides a list of individuals who will be allowed to make the decision for you, in the following order:
- spouse;
- adult child or majority of your adult children;
- parents;
- adult sibling or majority of your adult siblings;
- nearest other adult relative.
Living wills have no effect on life insurance or on annuities.
Before considering a "living will" there are three important points to bear in mind.
- A "living will" is only used when you can no longer participate in the decision making process surrounding your treatment and you have been diagnosed with a terminal condition which will result in death in a short period of time. As long as you remain competent you may refuse or accept treatment, regardless of the existence of a living will.
- The living will is a personal statement which should reflect your end of life treatment desires. It should be developed by you through consultation with your attorney if you wish to use one. You may wish to discuss this topic with loved ones and your personal doctor or health nurse. Any generic or standardized form of a living will should be examined to ensure that it reflects your wishes.
- The validity and composition of living wills may vary from state to state. If you anticipate spending a substantial amount of time in another state, you should research that state's law.
If you have decided to exercise your right to a living will, please consider the following steps:
- Do the research. Materials and other samples may be obtained from a variety of sources (for example: Montana Senior Citizens' Association; American Lung Association of Montana; or Montana Code Annotated). Be positive that your ideas concerning the nature of incompetency which triggers the use of the will,the severity of the medical condition necessary to withhold treatment, and the types of treatment to be withheld are expressed in the document.
- Consider carefully who will serve as witnesses. Although Montana law has little to say concerning witnesses, other states have set out more specific requirements. As a general rule, your attending physician or other medical personnel who may be attending to you in time of illness should not act as witnesses. In some states relatives may not act as witnesses.
- The living will should be easily accessible to those likely to be involved in a time of emergency. Copies of the executed document should be in your medical records, and family members and your personal physician should also have a copy. You may also want to carry a card in your wallet or purse stating the existence of your living will and how it may be located.
- A living will should be re-executed, or rewritten, at relatively frequent intervals. This will add to the perception that the document truly reflects your wishes.
- Remember, you have the ability to revoke the living will at anytime and in any manner.
Like a testamentary will, the living will allows you to maintain your right to self-determination. It is a document of great significance which requires research and reflection before drafting. Contact your local Area Agency on Aging for additional information if you feel it is necessary.
Use the form if you want to appoint someone else (who is of sound mind and 18 years of age or older) to make the decisions for you about withholding or withdrawing life-sustaining treatment. If your appointee is unavailable or unwilling to serve as your designee, your doctor will make the determination. If you use the form, check with the people you want to be designees to make sure they are willing to so serve.
DISCLAIMER
This Legal guide was complied by the DPHHS Aging Services Division Legal Services Developer. This publication is not intended to be a substitute for legal advice. Rather, it is designed to help families become better acquainted with some of the devices used in long term planning and to create an awareness of the need for such planning. Future changes in laws cannot be predicted and statements in this narrative are based solely on those laws in force on the date of publication.
We recommend that you seek legal advice for all your planning needs.
