A living will may be executed and given to a person’s health care provider at any time. However, a living will does not go into effect until the person in question becomes incapacitated and can no longer communicate his or her wishes to a health care provider. A doctor must determine that the person is incapacitated.

• In order to be valid the doctor’s determination must include the doctor’s written opinion.
  
• In cases where the incapacitation is not readily apparent, a second doctor must file a confirmation of the first doctor’s opinion.

Written Determination

The determination must be in writing and include the doctor’s opinion as to the:

• Nature;
  
• Cause;
  
• Extent; and
  
• Duration of the declarant’s incapacity.

Note: This opinion becomes part of the declarant’s medical records.

Confirmation

• If confirmation of the determination is required, one or more doctors must confirm the first doctor’s opinion. This must be done in writing. The confirmation must include the nature, cause, extent and duration of the incapacity.
  
• No confirmation is required if it is readily apparent that the declarant is unable to make decisions and the doctor and health care representative agree that confirmation is unnecessary.
  
• A doctor that is selected as the declarant’s health care representative cannot make the confirmation.

Right to Notification of Declarant

The health care provider must inform the declarant and the health care representative of the determination and right to contest the determination.