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Making It Legal

When you arrive at this section of the program, know that you have finished with the hard parts of making your health care directives. You have overcome the lure of procrastination to assert your right to keep control over your own health care.

However, you still must comply with a few technical requirements before your documents will be legally valid and binding. Very detailed, state­ specific instructions will print out with your documents. But here's a brief overview of what you must 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.

Your Agent's Signature

In just a few states, including Alabama, Michigan, North Dakota and Oregon, your health care agent must sign your health care document before acting on your behalf. Sometimes your alternate health care agent must sign, too.

If you live in a state that requires your agent to sign your health care document, the document will include a section for the signature, and the instructions that accompany your document will remind you to talk with your agent and get the signatures you need.

Signing for Someone Else

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 the direction of the person who cannot sign. In most states, the document will print with a special place for you to add the signer's name and signature.

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.

Having Your Documents Witnessed and Notarized

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. Each state's rule is listed below. Note that a few states have different requirements for the document directing your health care and the document naming your agent.

Learn Your State's Finalization Requirements.

Witnessing

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.

If your state has restrictions on who may serve as witnesses to your health care documents, those restrictions are listed above and will also be noted on your documents, just before the witness signature lines.

Notarization

A notary public is an individual who is authorized by the state to verify signatures on documents. It shouldn't be difficult to find a notary. A quick online search should uncover local options, and many hospitals also have a notary 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.

The table above, as well as the instructions accompanying your documents, will tell you if your state requires that your documents be notarized and if there are any restrictions on who may serve as the notary.

Note for Nevada: In Nevada, there's an extra requirement for residents of hospitals, residential facilities for groups, facilities for skilled nursing and homes for individual resident care. A medical professional must state in writing that the person signing the document is competent. If this applies in your situation, read the signing instructions that print with your document for directions on what to do.

Glossary of Witnessing Terms
When you read the requirements for witnesses in your state, 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.I
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.