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Living Will in Minnesota: The Health Care Directive, Signing Rules, and the Form
In Minnesota, a living will is now part of a health care directive, which needs a notary or two witnesses. Here is how it works under Minnesota Statutes chapter 145C.
By naveen · Updated · How we research our guides
What to know
- Minnesota's living will law applies only to living wills signed before August 1, 1998; since then, a health care directive under chapter 145C holds both treatment instructions and the choice of a health care agent.
- A health care directive must be dated, signed, and verified by a notary or by two witnesses; the agent can't be a witness or the notary (Minn. Stat. 145C.03).
- The statute prints a suggested form in 145C.16, and using it is optional.
- Chapter 145C sets no family priority list for when there's no directive; a court guardianship is the formal route.
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
A living will in Minnesota, for anything signed today, is a health care directive. Minnesota's old Living Will Act "applies only to living wills executed before August 1, 1998," and a document called a living will signed after that date is judged under chapter 145C (Minn. Stat. 145B.011). The Minnesota Department of Health explains: "The law changed so people can use one form for all their health care instructions."
What is a health care directive in Minnesota?
It's "a written instrument that complies with section 145C.03 and includes one or more health care instructions, a health care power of attorney, or both" (Minn. Stat. 145C.01). The two parts do different jobs:
| Part | What it does | The old name |
|---|---|---|
| Health care instructions | "a written statement of the principal's values, preferences, guidelines, or directions regarding health care" | Living will |
| Health care power of attorney | Appoints a health care agent, age 18 or older, to make health care decisions | Durable power of attorney for health care |
Your parent can include either part or both. The Minnesota Attorney General's office notes that "Minnesota law allows you to consolidate your living will, durable power of attorney and health care directive into one form for all your health care instructions." For the general picture, see power of attorney vs. advance directive.
Is an older Minnesota living will still valid?
Yes, if it followed the law when it was signed. According to the Department of Health, "Forms created before August 1, 1998, are still legal if they followed the law in effect when written." A living will made under the old act needed two witnesses or a notary. If your parent's papers predate 1998, it's worth reading them with your parent to see whether they still say what your parent wants.
How do you sign a health care directive in Minnesota?
Under Minn. Stat. 145C.03, a directive must be in writing, dated, state your parent's name, be signed by your parent (or someone they authorize) while they have capacity, and include instructions, an agent appointment, or both. The signature must be verified "either by a notary public or by witnesses as provided under this chapter."
The suggested form spells out the choice: the document "must either be verified by a notary public (Option 1) OR witnessed by two witnesses (Option 2). It must be dated when it is verified or witnessed." Each witness certifies they're at least 18.
Who can't witness or serve as the agent?
Your parent's health care agent can't witness or notarize the directive, and a health care provider attending your parent can't be the agent unless related to your parent or the directive allows it (Minn. Stat. 145C.03).
- Witnesses and the notary. Your parent's health care agent or alternate agent can't be a witness or the notary. At least one witness can't be a health care provider giving your parent direct care, or that provider's employee, on the day of signing. A notary may be such an employee.
- The agent. Unless related to your parent by blood, marriage, registered domestic partnership or adoption, or unless your parent's directive says otherwise, the agent can't be a health care provider attending your parent, or that provider's employee, when the directive is signed or when decisions must be made.
The sections we read don't bar relatives or heirs from witnessing.
Where do you get a Minnesota health care directive form?
The statute prints a suggested form, and the Attorney General's office posts it free. Minn. Stat. 145C.16 says: "The following is a suggested form of a health care directive and is not a required form." The Attorney General's version is a free PDF, and the Department of Health says to "Find free Health Care Directives from your local health care provider or healthcare system."
Under the suggested form, the agent automatically can make any health care decision, choose providers, choose where your parent lives when it relates to health care needs, and review medical records. Deciding on organ donation and what happens to your parent's body after death are powers your parent must initial to grant. The form's reminder says to keep it "in a safe place (not in a safe deposit box)."
When does it take effect?
Under Minn. Stat. 145C.06, a directive is effective for a decision when your parent, "in the determination of the attending physician, advanced practice registered nurse, or physician assistant of the principal, lacks decision-making capacity to make the health care decision," or when other conditions your parent wrote in have been met. It stops applying if your parent recovers capacity.
Your parent can also choose to let the agent act sooner: a directive "may authorize a health care agent to make health care decisions for a principal even though the principal retains decision-making capacity." The agent "has a duty to act in good faith," and has the same right as your parent to see medical records unless the directive limits it.
What happens if your parent has no health care directive?
Chapter 145C sets no priority list of relatives who decide. It says it "does not create a presumption concerning the intention of an individual who has not executed a health care directive." The Department of Health says: "You will still receive medical treatment if you don't have a written directive. Health care providers will listen to what people close to you say about your treatment preferences."
The formal route is a court guardianship. The powers a court may grant a guardian include "the power to give any necessary consent to enable the person subject to guardianship to receive necessary medical or other professional care" (Minn. Stat. 524.5-313). A health care agent named in a directive is second in the court's priority for appointing a guardian, unless the directive says otherwise. See conservatorship and guardianship.
How do you revoke a Minnesota health care directive?
Under Minn. Stat. 145C.09, a parent with capacity can revoke all or part of it at any time by:
- destroying it, or having someone destroy it in their presence, with the intent to revoke;
- signing a dated written statement;
- saying so "in the presence of two witnesses who do not have to be present at the same time"; or
- signing a new directive, to the extent it's inconsistent with the old one.
If your parent named their spouse or registered domestic partner as agent, the appointment is revoked when proceedings for dissolution, annulment or termination begin, unless the directive says otherwise.
What about POLST?
A POLST, Provider Orders for Life-Sustaining Treatment, is a medical order signed by a health care provider, separate from a health care directive. The Minnesota Department of Health says "It is a medical provider's order which must be discussed with and signed by a healthcare provider," and that it "helps first responders know what treatments you would like in an emergency (outside of a hospital)."
Frequently asked questions
Does a living will need to be notarized in Minnesota?
No, two witnesses can verify it instead. A Minnesota health care directive, which now holds living will instructions, must be verified either by a notary or by two witnesses (Minn. Stat. 145C.03). Your parent's health care agent or alternate agent can't be the notary or a witness, and at least one witness can't be a provider giving your parent direct care.
Is a living will the same as a health care directive in Minnesota?
For documents signed since August 1, 1998, the living will is part of the health care directive. Minnesota's Living Will Act covers only living wills signed before that date. A health care directive can hold treatment instructions, the appointment of a health care agent, or both, in one document under chapter 145C.
Where can I get a Minnesota health care directive form?
The suggested form is printed in Minn. Stat. 145C.16, and the Minnesota Attorney General's office posts it as a free PDF. The Department of Health says health care providers and systems offer free directives. Using the statutory form is optional, but any directive must meet the signing rules in 145C.03.
Who makes medical decisions in Minnesota if there's no directive?
Chapter 145C doesn't set a family priority list. The Department of Health says providers will listen to what people close to your parent say about their preferences. If a formal decision-maker is needed, a court can appoint a guardian with power to consent to necessary medical care.
Is a living will from another state valid in Minnesota?
Yes, if it meets either state's rules. Under Minn. Stat. 145C.04, a health care directive or similar document executed in another state is legally sufficient if it complies with the law of the state where it was signed, or with Minnesota's own requirements. The Department of Health notes that requests for assisted suicide won't be followed.
Can my parent change their mind after signing?
Yes. A parent with capacity can revoke all or part of a directive by destroying it, signing a dated written statement, telling two witnesses, or signing a new directive. Giving the doctor and agent the new version keeps everyone working from the same document.
Getting started
A health care directive only helps if it's signed while your parent can sign it, verified by a notary or two witnesses, and if copies reach the doctor and agent. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds. For money matters, see our Minnesota power of attorney guide.
Related guides
Sources
- Minnesota Statutes chapter 145C, Health Care Directives: definitions (145C.01), signing and eligibility (145C.03), other states (145C.04), when effective (145C.06), the agent (145C.07, 145C.08), revocation (145C.09) and the suggested form (145C.16); published by the Office of the Revisor of Statutes.
- Minnesota Statutes chapter 145B, Living Will Act: living wills signed before August 1, 1998.
- Minnesota Statutes 524.5-313: powers of a guardian.
- Minnesota Department of Health, Questions and Answers About Health Care Directives: plain-language guidance.
- Minnesota Department of Health, Advance Care Planning: health care directives and POLST.
- Minnesota Attorney General, Health Care Directives: guidance and the sample form.
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