When many people hear the word “will,” they know exactly what you’re talking about. They know about leaving property to specific people, they know about last wills and testaments, and they know about the estate planning process to some degree. But when you ask someone about a “living will,” there’s a chance they might not be so quick to give you an answer. Why is that? Because a living will can address some complicated issues that many people haven’t even begun to think about. So let’s take some time to define a living will and talk about what they contain.
A living will is essentially a document someone draws up, addressing how they want to be treated if they have to undergo “life-prolonging medical treatments” and they’re unable to address these issues themselves because of being in a coma or similarly incapacitated state. For many people, simply telling a family member how they want to be treated in these conditions is enough - but you’d be surprised just how little legal weight that can really carry.
That’s why living wills can be so important - without one in place, you might never get the treatment you actually wanted. Like wills themselves, living wills are a way you can speak for yourself even when you’re incapacitated and literally unable to speak for yourself - they’re a record of your wishes under dire circumstances. If you want people to know how you would prefer to be treated under these kinds of circumstances, you have to put it in writing and make sure it’s legal.
Because the medical world is such a serious one - full of patients’ rights, confidentiality issues, etc. - a living will is also a serious document. It deals with your medical treatment, and doctors won’t be able to give you the treatment you actually want for sure unless you draft a living will that addresses these core issues.
For many people, handling one of these living wills can be as simple as downloading an online form and filling in the details. A lawyer can certainly help you understand each individual issue brought up in the living will, but for the most part you’ll want to do the thinking on your own. For many people, they know exactly how they want to be treated before they ever draft the living will, so the entire process can be more simple than you think.
If you already have a will, you might hear the phrase “living will” and assume you’re covered. But it’s an entirely separate document that will require an entirely separate focus. The better you understand your living will and the issues it makes you address, the better decision you’ll be able to make. A living will should be on your checklist for “things to do,” along with drafting a regular will, and should be set aside in a safe place (such as left with your lawyer).
A Living Will is a legal document that explains your wishes for your medical care in extreme and specific circumstances. Though it is called a “will,” it is only similar to a standard will in that it explains what you want to happen while you are unable to explain your own wishes. However, a Living Will can still be used while you are alive – hence the name – but will be employed only when you are mentally/physically incapable of expressing your wishes yourself.
Essentially, a Living Will is a legal document that tells your doctors and family how to handle your medical care in situations where you cannot express those wishes yourself. It is separate from a Durable Power of Attorney for Health Care in that it lays out your wishes and a Durable Power of Attorney for Health Care appoints someone to make your medical decisions on your behalf.
A Living Will is crucial to use if you have specific wishes on how you want to be treated in certain situations – for example, if you are mentally incapacitated in an accident. If you want to continue to receive life-saving treatment, you can establish this in your Living Will and ensure that this is the treatment you receive. Without a Living Will, the decision may pass to someone else,and they may make the decision you did not want to have made.
Generally, the Living Will will address life-prolonging health care you receive while you’re incapacitated. You are known as the “declarant,” which means you’re simply declaring your wishes regarding this type of medical care. You will typically need to address what you want in the cases of highly specific issues; this means you’ll likely go through a few of these issues hypothetically and write down your wishes should these scenarios ever arise. Information such as who you want to make decision for you are left to other documents and can be handled with a comprehensive Advance Health Care Directive (see next question).
An Advance Health Care Directive is essentially a comprehensive plan you have for situations that would call for Living Wills, but is slightly more comprehensive than a Living Will because it will also include the naming of a proxy that can make your decisions for you. In this situation, the Living Will is then used as a guideline for your wishes (to be carried out by the person granted your Health Care Power of Attorney), but not necessarily the final word in any particular decision made about your health care.
Technically, a Living Will is a type of Advance Health Care Directive, which simply refers to any arrangements you make in advance of health care issues like those presented here.
Yes, because a Will addresses completely separate issues from that of a Living Will. While both documents address difficult scenarios to think about, they are completely separate scenarios as well. In the Will, you make arrangements for what will happen to your property after your passing. In the Living Will, you make arrangements for how you want your body cared for while you’re still alive – with the possibility of recovering or not.
Though they might sound the same, in reality the two different arrangements have little to do with each other. A Living Trust is an arrangement that you can set up in order to transfer property upon your death while a Living Will is an arrangement in which you address your medical issues while still alive.
Though the Living Will generally won’t require many changes over the years (except the changes you personally want to make), it’s important to remember that an Advance Health Care Directive such as a Living Will might depend on a durable power of attorney for health care that you wanted to appoint to a spouse that you are no longer married to. This is why it’s important to review these documents after a divorce, as well as regularly revisit them from time to time to ensure that they match your wishes.
The Living Will establishes your wishes; the Durable Power of Attorney for Health Care establishes who will make the decisions on your behalf while you’re still alive, albeit incapacitated. In essence, the Living Will allows you to make your own decisions and the Durable Power of Attorney for Health Care appoints someone else to make them for you. Both can be useful to have, however, simply because you may not have thought of every possible scenario in your Living Will.
A Living Will is enforceable only when it is legally crafted (according to the laws in your state), signed, and when the circumstances that the Living Will describes actually come to pass. Otherwise, your medical decisions will all be handled normally. Also, it is important to remember that if you appoint someone with Durable Power of Attorney for Health Care, they may be able to make the final decisions about your health care.
The Living Will should conform to all local and state laws and should address issues that will actually arise in the event of a medical emergency or specific condition.
A Living Will’s effectiveness depends on whether or not it is valid (see question above) and whether the situations described in the Living Will actually come to pass. If not, you will simply continue to live your life the way you usually have, making your own medical decisions along the way.
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