How Can I Obtain a Living Will Through the Courts If it Was Taken From Me?

You can change your living will at any time.

Your living will is a legal document that details what kind of medical care you do or do not want when you have a terminal illness or are otherwise rendered incapable of making medical decisions. If you've created a living will and given it to someone else who then refuses to give it back, you might be able to get the document back by taking the person to court, but it may not be worth the effort.

Things You'll Need

• Small claims petition
• Evidence

Instructions

1. Gather evidence. Your case hinges on whether you can prove to the court that your living will was taken and that the person refuses to give it back. Any records you have to show this, including letters or witness testimony can help prove your case.

2. Talk to a lawyer. Sometimes a letter from an attorney, printed on sufficiently intimidating attorney letterhead, is enough to compel someone to give in to your demands. Discuss the available options options with a lawyer.

3. Contact your local courthouse clerk's office. If you want to go to court to order someone else to return your living will documents, you will probably have to file your case in small claims court. Every jurisdiction has a small claims court, so contact your local county courthouse and ask the civil court clerk's office for the small claims requirements in your state.

4. File your case to ask the court to order someone to do something, you have to file a petition, a written request that tells the court what you want. If you want to ask the court to force someone else to give you back a copy of your living will, you must file the petition and name the defendant. Each court has different rules for what a petition looks like, but you must include basic information such as your name, the nature of your case, the name of the defendant and the relief you are asking for.

5. Go to court. You have to prove to the court that you are entitled to forcing the defendant to give back your living will. Small claims courts do not allow lawyers to be present, and the judge has more leeway in handling the cases, so you don't have to be an expert in the law. However, you must prove your case by using evidence, though testimonial evidence is sometimes enough to win the case.

Tips & Warnings

• Write a new living will. As long as you remain mentally capable, you can change your living will whenever you want. Writing a new will revokes the old will, so it doesn't matter if you can't get it back.

• Give a copy of your living will to a close friend or relative. As long as you keep a copy available, you can use it whenever you need to.

References

• New York State Unified Court System: A Guide to Small Claims Court; New York State Unified Court System; September 1996
• American Bar Association: Health Care Advance Directives
• California Courts Self-Help Center: Small Claims Basics