10 Things You Should Know About Living Wills
When it comes to estate planning, you've heard people mention several types of Wills. The most common is a "last will and testament," also known simply as a "will." Also, you may have heard people talk about a "living will."
Both terms describe important legal documents used in estate planning. Still, their purpose and how they work are very different. Here we will discuss some of the most critical things you should know about living Wills and explain why having one is essential to every adult's estate plan and how to get yours created or updated.
01 | WHAT IS A LIVING WILL?
A living Will, often called an "advance healthcare directive," is a legal document that tells your loved ones and doctors how you would want decisions related to your medical care handled in the event you become incapacitated and are unable to make such decisions yourself, particularly at the end of life. Specifically, a Living Will outlines the procedures, medications, and treatments you would want—or would not want—to prolong your life if you cannot discuss such matters with doctors yourself.
For example, within your Living Will, you can spell out certain decisions, such as if and when you would want life support removed should you ever require it and whether you would want hydration and nutrition supplied to prolong your life.
Beyond instructions about your medical care, a living will can even describe what kind of food you want and whocan visit you in the hospital. Below, we'll cover specific decisions and scenarios addressed in a living will.
02 | LIVING WILL VS LAST WILL & TESTAMENT
A Last Will and Testament ensures your assets are divided upon your death in the way you choose. Note that your Will only deals with your assets and operates upon your death. In contrast, a living will is about you, not your assets, and operates in the event of your incapacity, not your death.
In other words, a Last Will tells others what you want to happen to your wealth and property after you die. In contrast, a Living Will tells others how you want your medical treatment managed while you are still alive.
03 | WHAT IS AN ADVANCE DIRECTIVE AND HOW IS IT THE SAME OR DIFFERENT THAN A LIVING WILL?
"Advanced directive" or "Advance Healthcare Directive" are general terms that describe legal documents related to your healthcare needs. Typically, an advance healthcare directive will include a living will (with instructions for how you want your medical care handled) and a medical power of attorney (naming the people you want making decisions for you and giving them authority to talk with your medical team)
04 | LIVING WILL VS MEDICAL POWER OF ATTORNEY
A medical power of attorney is part of an advance healthcare directive that allows you to name a person, known as your "agent," to make healthcare decisions on your behalf if you're incapacitated and unable to make those decisions yourself. A medical power of attorney is an advance directive that names who can make healthcare decisions in the event of your incapacity; in contrast, a Living Will explains how your medical care should be handled.
For example, suppose you become seriously ill and cannot manage your medical treatment. In that case, a Living Will helps guide your agent to make these decisions on your behalf, letting them know how you want decisions made. But the medical power of attorney part of the document says who should be making the decisions. In this way, medical power of attorney and a living will work closely together. For this reason, they are often combined into a single document.
This is critically important to note: Not all living will form documents or templates include a medical power of attorney or the proper legal authorizations to give whomever you want to make decisions for you (your agent) the legal authority to access your medical records. Therefore, if you are completing an online living will or advance healthcare directive or supporting a family member to do so, make absolutely sure that the document legally names a decision-maker with at least two backup decision-makers, gives that person legal authority under HIPAA to access your medical records, AND provides specific and detailed instructions regarding how your medical care should be provided in the event of incapacity.
05 | WHY IS A LIVING WILL SO IMPORTANT?
A living will is a vital part of every adult's estate plan, as it can ensure your medical treatment is handled exactly the way you want if you cannot communicate your needs and wishes. Additionally, a Living Will can prevent your family from undergoing needless stress and conflict during an already trying time.
Without a living will, your family will have to guess what treatments you might want, and your loved ones are likely to experience stress and guilt over the decisions they make on your behalf. In the worst cases, your family members could even battle one another in court over how your medical care should be managed.
06 | EVEN YOUNG PEOPLE NEED A LIVING WILL
Although you may think that a living will is something that only the elderly or older people need, the fact is that you can experience a severe accident or illness at any age, which would leave you incapacitated and unable to communicate your wishes for medical care. For this reason, all adults over age 18 should have both a living will and a medical power of attorney in place.
One tragic example of just how horrific things can become when a young person becomes incapacitated without a living will is the case of Florida's Terry Schiavo, who spent 15 years in a vegetative state after suffering a heart attack at age 26. Schiavo had neither a living will nor a medical power of attorney. Schiavo's young husband fought her parents in court for years for permission to remove her from life support, specifically to remove the hydration and nutrition that was keeping her alive. The resulting litigation made news headlines worldwide and exposed a deep divide among Americans over the right-to-die movement.
07 | DECISIONS AND SCENARIOS ADDRESSED IN A LIVING WILL
A few of the most common types of decisions, treatments, and scenarios typically addressed in a living will include the following:
TUBE FEEDING
You can include instructions about if and for how long you would want tube feeding used to supply you with nutrients and fluids needed to prolong your life.
RESUSCITATION (CPR & DNR)
You can include what's known as a Do-Not-Resuscitate (DNR) order in your living will if you do not want resuscitation in the event your heart stops. A DNR can also be a stand-alone document.
INTUBATION & MECHANICAL VENTILATION
You can state if and for how long you would want to be intubated and placed on a mechanical ventilator if you could not breathe on your own. This became particularly important during the pandemic since, in severe COVID-19 cases, patients often require intubation, which involves putting you into a medically induced coma and inserting a tube into your windpipe, allowing oxygen to be pumped directly to your lungs using a ventilator.
PAIN MANAGEMENT & PALLIATIVE CARE
These are instructions about the types of pain management medications you would—or would not—want to be prescribed to you; if you want to die at home, as well as any other interventions you might want for comfort and pain management at the end of life.
ORGAN/TISSUE DONATION
You can specify in your living will if you want to donate your organs and/or tissues for transplant following your death. Note that you will likely receive life-sustaining measures until any procedures are completed to remove your organs and tissues.
08 | SHOULD YOU DO IT YOURSELF WITH AN ONLINE LIVING WILL?
While you'll find a wide selection of generic living wills, medical power of attorney, and other advance directive documents online, you may not want to trust these do-it-yourself solutions to address such critical decisions adequately. Regarding your medical treatment and end-of-life care, you have unique needs and wishes that fillin-the-blank documents can't anticipate. To ensure your directives are specifically tailored to suit your unique situation and that you get it done instead of just knowing you need to get it handled and never do it, work with experienced planning professionals like your Personal Family Lawyer® to create—or at the very least, review—your living will, medical power of attorney, and other documents. We don't just ensure your documents get created correctly; we have processes to keep you moving forward beyond procrastination and get them signed (which is one of the most significant risks to your family), as good intentions alone won't keep your family out of court and out of conflict should you become incapacitated without a signed (and updated) plan in place.
09 | COMMUNICATION IS VITAL
Even if you have the most well-thought-out and professionally prepared living will, it won't be worth the paper it's printed on if nobody knows about it. Both living wills and medical power of attorney go into effect the second you sign them, so you should immediately deliver copies to your agent, alternate agents, primary care physician, and any other medical specialists you're seeing. And remember to give those folks new versions whenever you update the documents and have them tear up the old documents. As a standard part of our practice, when you work with us to create your legal documents, we'll ensure that everyone who needs your documents always has the latest version.
10 | DON’T WAIT UNTIL IT’S TOO LATE
You must create your living will and medical power of attorney well before you become incapacitated and unable to make your own decisions. You must be able to clearly express your wishes and consent for these planning documents to be valid, as even slight levels of dementia or confusion could get them thrown out of court. An unforeseen illness or injury could strike at any time or age, so don't wait—contact the Law Firm of Shandell C. George immediately to get these vital documents in place.
A COMPREHENSIVE PLAN FOR INCAPACITY
A living will and medical power of attorney are just two of the legal documents you need as part of your overall plan for incapacity. You will also likely need other estate planning tools, such as a durable financial power of attorney and a revocable living trust, to have a truly comprehensive incapacity plan. We see estate planning as so much more than planning for death, which is why we call it Life & Legacy Planning—because it's about your life and the legacy you are creating by the choices you make today. If you've yet to create your incapacity plan, schedule a Wealth Planning Session right away. We can advise you about the proper planning vehicles to put in place. And if you already have an incapacity plan—even one created by another lawyer—we can review it to ensure it's been correctly set up, maintained, and updated. Contact us today to get started.
This article is a service of Shandell George. We do not just draft documents; we ensure you make informed and empowered decisions about life and death for yourself and the people you love. That's why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you've ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.
