Living will requirements in Arkansas

Which document is this, really

Arkansas runs two advance-directive laws at once, written thirty years apart. The newer one, the Arkansas Healthcare Decisions Act (Ark. Code Ann. § 20-6-101 and following), calls the whole category an advance directive and lets you use it to write a living will, name someone through a Durable Power of Attorney for Health Care, or do both in one paper. The older one, the Arkansas Rights of the Terminally Ill or Permanently Unconscious Act (§ 20-17-201 and following), calls its version a declaration, and lets you name a healthcare proxy inside it.

These are not two competing choices where you have to pick a lane. Arkansas law folds them into each other. A declaration made under the older act counts as a living will under the newer act’s own definition, and it counts as an advance directive under the older act’s definition too. The two statutes operate side by side rather than one replacing the other, so a document that satisfies either one is doing real legal work in Arkansas.

For most people the practical difference does not matter much. One document, built under either act’s language, can carry your treatment wishes and name your agent, and current law signs it the same way no matter which act you are relying on. That is exactly what Myend’s free Healthcare Directive prepares for Arkansas: your wishes and your agent, gathered into one document, signed once.

Who can make an Arkansas advance directive

Under the Healthcare Decisions Act, you can make an advance directive if you are an adult, a married minor, or an emancipated minor recognized under Arkansas’s own emancipation statute. Under the older Rights of the Terminally Ill Act, the line is simpler and narrower: a declaration is only for someone eighteen or older, with no exception written in for a married or emancipated minor.

Beyond age, both acts are really asking the same thing in different words: that you understand what you are signing and what it does. That is a judgment your witnesses, or your notary, make in the room with you, not a medical clearance you carry in ahead of time.

Signing it so it counts

Both acts now offer the same choice: two witnesses, or a notary, never both. The Healthcare Decisions Act states it directly, and a 2017 amendment added the notary route to the older act, whose own requirement is a declaration signed by you and witnessed by two individuals. The detailed witness rules below come from the Healthcare Decisions Act, and they are the ones to follow, since a directive that satisfies that act is valid under the older one too.

1. 1You sign

   You sign your advance directive, or direct someone else to sign it for you, in your presence.

2. 2Two witnesses, or a notary

   Sign in front of two competent adult witnesses, or skip the witnesses entirely and have your signature notarized instead. Either route makes the document valid on its own.

3. 3If you use witnesses

   Both witnesses must be competent adults, and neither one can be the agent you are naming. At least one of the two must also not be related to you by blood, marriage or adoption, and must not stand to inherit any part of your estate under a will, a codicil, or by operation of law. The document itself has to carry a signed attestation clause in which your witnesses confirm they meet these rules.

If you choose the notary route instead, the witness lines and the attestation clause are replaced by a notary’s acknowledgment, and you do not need witnesses at all.

Naming your agent

Arkansas calls this person your agent under the Healthcare Decisions Act, and a healthcare proxy under the older Rights of the Terminally Ill Act. Both names describe the same role: someone you designate to make health care decisions for you once your advance directive takes effect.

Arkansas law does not narrow who you may name. Neither act lists categories of people barred from serving as your chosen agent or proxy. The only limit that touches this choice at all is the witness rule above, which keeps your agent from also acting as one of your two witnesses. If you use the older act’s language and name a healthcare proxy, that person must be eighteen or older.

The two acts hand over authority on different terms, so it is worth knowing which one your document is built on. An agent under the Healthcare Decisions Act decides for you from the moment a physician determines you lack capacity, following your instructions and known wishes first and your best interests only where those run out. A healthcare proxy under the older act acts only once you are a qualified patient, that is, once the attending physician and a second physician have found you terminal or permanently unconscious, and then only in consultation with the attending physician.

When it takes effect

The two acts switch on differently, so name the document when you ask this question. Under the Healthcare Decisions Act, your agent’s authority under a Durable Power of Attorney for Health Care begins once a determination is made that you lack the capacity to decide for yourself, and it ends the moment your capacity returns. A licensed physician makes that determination, may consult others first, and has to record it promptly in your current clinical record and tell you, if that is possible, and anyone authorized to make health care decisions for you.

Under the older Rights of the Terminally Ill Act, a declaration asks for more before it switches on. It becomes operative only once it has been communicated to your attending physician, and that physician, together with a second physician examining you in consultation, determines that you are either in a terminal condition and no longer able to decide about life-sustaining treatment, or permanently unconscious.

If you are pregnant

Arkansas’s pregnancy rule lives in the older Rights of the Terminally Ill Act, and it attaches to the declaration specifically. The newer Healthcare Decisions Act carries no pregnancy provision of its own. The rule is conditional rather than an automatic pause: your declaration is not given effect while it remains possible that the fetus could develop to the point of live birth if life-sustaining treatment continues, and it only applies once your attending physician actually knows you are pregnant.

Because a declaration made under the older act also counts as a living will under the newer act’s own definition, a living will that takes the form of a declaration is caught by this rule. Arkansas law does not say plainly whether the same rule reaches a document built purely under the Healthcare Decisions Act’s own wording, so this page states only what the statute itself says, and which document it says it about.

Changing or cancelling it

Name the act here too, because the two do not match. Under the Healthcare Decisions Act, you can revoke all or part of your advance directive at any time, in any manner that communicates your intent to revoke, as long as you still have capacity to do it. Divorce, annulment, dissolution of marriage, or legal separation automatically revokes a former spouse’s designation as your agent, unless your decree or your directive says otherwise, and a later advance directive that conflicts with an earlier one revokes the earlier one to the extent they conflict. Anyone told about a revocation has to pass that news along promptly to your health care provider and any facility treating you.

Under the older Rights of the Terminally Ill Act, a declaration can be revoked at any time and in any manner, and this act does not ask you to have capacity to do it. Your mental or physical condition does not matter at all. The revocation takes effect once it is communicated to your attending physician or another health care provider, either by you or by a witness to the revocation.

Making sure it is found

Give a signed copy of your advance directive to your agent, your physician, and the hospital you are most likely to use, and tell your family exactly where the original is kept. A directive nobody can find works no better than no directive at all, and that is true whichever Arkansas act it was made under.

If you signed your advance directive somewhere else and are now being treated in Arkansas, both Arkansas acts agree: a directive validly executed in another state is given effect here if it complied, at the time you signed it, with either that state’s law or Arkansas’s own.

This is not a POLST

Arkansas’s medical order program is generally known as AR POLST (Arkansas Physician Orders for Life-Sustaining Treatment). It is a different kind of paperwork from your advance directive. A POLST is a set of specific medical orders, signed by a clinician together with someone already facing serious illness, meant to travel with that person between hospital, nursing facility, home, and ambulance. An advance directive, whether it takes the form of a living will, a declaration, or a durable power of attorney for health care, is something you put in place ahead of time, for a future you cannot yet see. Myend prepares the advance directive. It does not produce a POLST, which has to come from a treating clinician.

What is different about Arkansas

Arkansas keeps two advance-directive laws on the books at once, thirty years apart, and lets either one do the job.

Most states settled on a single statute for this. Arkansas never repealed its older Rights of the Terminally Ill or Permanently Unconscious Act when it adopted the newer Healthcare Decisions Act. Instead, the legislature wrote the two into each other: a declaration under the old act counts as a living will and as an advance directive under the new one’s own definitions. The result is less confusion than flexibility. A single document, built under either act’s language, can be all the paperwork you need.

The two acts do part ways in a few real spots. The older act’s declaration draws a flat line at eighteen, while the newer act also lets a married or emancipated minor sign. The older act lets you revoke a declaration no matter your condition; the newer act asks you to still have capacity to revoke. And Arkansas’s pregnancy rule lives only in the older act, tied to the declaration and to fetal viability, with nothing written for a document made purely under the newer one.

What does not change between them is how you sign. Since the 2017 amendment brought the two acts into line, both ask for the same thing: two witnesses, or a notary, never both. Arkansas’s medical order program, generally known as AR POLST, sits outside both acts entirely, doing a different job at a different moment in your care.

Common questions

Sources and review