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Living Wills 101: Everything you Need to Know

In estate planning, there’s a term that often gets tossed around but isn’t always fully understood: living wills. 

What exactly are living wills, and how do they fit into a coordinated estate plan? Are they different from medical directives, and what’s the deal with the common misconception that they continue even after death? 

In this article, we’ll address all these questions and provide you with a comprehensive guide to living wills.

What Are Living Wills?

A living will, in essence, is a legal document that allows you to express your healthcare preferences and decisions in advance, especially in situations where you may not be able to communicate those preferences yourself. It’s an essential component of an individual’s advanced healthcare directives and serves as a crucial tool for ensuring your medical wishes are respected, even when you can’t voice them.

In a living will, you can specify various medical scenarios and the corresponding treatments you would or would not like to receive. This could include decisions regarding life support, resuscitation, organ donation, and other medical interventions. 

It is very important to understand that a living will has nothing to do with how your assets are distributed after your death.  A living will only expresses your healthcare preferences in certain situations, particularly with a terminal diagnosis or a persistent vegetative state.

By having a living will in place, you provide clarity to your healthcare providers and your loved ones about your desires regarding end-of-life care, and still, less than half of Americans have one. 

Living Wills vs. Regular Wills

Living wills deal with medical preferences and end-of-life decisions while you’re alive, guiding healthcare choices when you can’t communicate. Regular wills, on the other hand, distribute assets and property after your death.

In fact, a 2020 Gallup survey found that 45% of US adults say they have a living will for their assets. This demonstrates the common misunderstanding about living wills in contrast to a traditional or regular will. As it may be expected, those aged 65+ are the most likely to have a will, with just over 3/4 saying they have one. Each younger age group is significantly less likely to have a will than the previous one, including just 20% of adults under the age 30. The number of people who have a living will or other medical directive is even lower than the number with a traditional or regular will.  

Living wills impact your healthcare, while regular wills govern estate distribution. Both are essential in comprehensive estate planning for your medical and financial well-being.

Is There a Difference Between a Living Will and a Medical Directive?

Often, the terms “living will” and “medical directive” are used interchangeably. However, there’s a subtle difference between the two. While both serve the purpose of outlining your medical preferences in advance, a living will typically focuses on end-of-life decisions and treatments.

On the other hand, a medical directive, or a healthcare power of attorney, designates a trusted individual to make medical decisions on your behalf if you’re unable to do so. This person, often referred to as your healthcare proxy or agent, will consult your living will as a guide but can also make decisions beyond end-of-life scenarios, such as surgery options or treatment plans.

Often, the living will may be included as a section of the medical directive. Your instructions, in the living will and / or medical directive, are important. We also recommend that you discuss with your trusted individual your wishes for your health care, including your reasons for wanting particular care. It is impossible to include every possible situation in a written document.  Therefore, giving your agent some idea of your thoughts and reasons can help them to know how best to advocate for your care when you cannot speak for yourself. 

In short, a living will specifies your preferences, while a medical directive designates someone to make those decisions for you. 

What Does a Living Will Include? 

A living will typically includes the following elements:

  • Identification: Your living will should start by clearly identifying you, the person creating the document, including your full name and any other relevant identifying information.
  • Statement of Intent: This section often begins with a statement that the document is your living will, expressing your intent to outline your healthcare preferences.
  • Medical Conditions: You may specify the medical conditions or scenarios in which the living will become applicable. For example, this could include irreversible coma, terminal illness, or severe brain injury.
  • Treatment Preferences: You can detail the specific medical treatments you would like to receive or refuse in these circumstances. Common decisions involve life support, resuscitation (CPR), mechanical ventilation, and artificial nutrition and hydration.
  • Palliative Care: Some living wills include preferences for pain management and palliative care to ensure comfort and relief from pain if treatment is withdrawn or withheld.
  • Organ Donation: You can indicate whether you wish to be an organ donor and, if so, specify which organs or tissues you’re willing to donate.
  • Duration: Clarify how long the living will remains in effect and under what circumstances it can be revoked or updated.
  • Signature and Witnesses: Most jurisdictions require the living will to be signed and dated by you, and in some cases, witnessed by individuals who are not involved in your healthcare or beneficiaries of your estate.

It’s important to consult with legal counsel or use templates provided by your state’s laws to ensure that your living will complies with local regulations and accurately reflects your preferences. Additionally, you should regularly review and update your living will to align with any changes in your medical or personal circumstances.

How Long Do Living Wills Last?

One common misconception about living wills is the belief that they continue to be in effect after a person’s death. In reality, a living will only applies while you are alive but unable to communicate your wishes. Once you pass away, the authority to make decisions shifts to your appointed executor or next of kin, who will then follow your will and any other estate planning documents you’ve created.

How Does a Living Will Fit into a Coordinated Estate Plan?

A living will plays a vital role in a comprehensive estate plan. It ensures that your medical preferences align with your overall estate planning goals. Here’s how it fits into the bigger picture:

  • Clarity and Peace of Mind: By specifying your medical wishes in a living will, you alleviate any potential conflicts or confusion among family members and medical professionals. This clarity can provide peace of mind to both you and your loved ones during difficult times.
  • Estate Preservation: A well-thought-out estate plan aims to protect your assets and distribute them according to your wishes. A living will ensures that your healthcare decisions align with your financial and property distribution plans.
  • Empowering Your Healthcare Proxy: If you’ve appointed a healthcare proxy through a medical directive, your living will gives them a clear understanding of your medical preferences, enabling them to make informed decisions on your behalf.
  • Consistency: A coordinated estate plan ensures that all your legal documents, including your living will, work together harmoniously, leaving no room for inconsistencies or conflicts in your end-of-life decisions.

A living will is a crucial element of any well-rounded estate plan. It allows you to have a say in your medical care when you can’t speak for yourself, bringing clarity, peace of mind, and consistency to your overall estate planning goals. By understanding its role and its differences from a medical directive, you can take proactive steps to ensure your wishes are respected during challenging times.

In need of some support when it comes to living wills? We’ll be happy to point you in the right direction. 

Looking for an estate planning attorney? Do not wait. Get started with Burnham Law today.

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