Living Will Basics

Clarifying Mixed Terminology

As is well-known, a will is a legal document. Used in estate planning, a will outlines a person’s instructions on distributing their property when they die. But "living will" is a bit of a misnomer.

A living will is an advance directive. It describes how someone should be cared for if unable to communicate while alive (hence, "living").

Living wills are known by several other names that vary from state to state, including:

• Health care declarations
• Medical directives
• Directives to physicians

As you investigate the laws in your jurisdiction, remember that the living will could be called by various names.

What Types of Procedures Are Covered?

Living wills address situations in which a terminal condition leaves a person unable to make health care decisions. They are used to permit, constrain, or prohibit various medical treatments. The instructions you leave can be general or specific.

Some of the most common topics addressed in living wills include:

• Life support: This life-sustaining treatment is used when a patient’s body cannot keep itself alive naturally. Treatment may include such steps as respirators filling your lungs with air or dialysis filtering your blood. Depending on the situation, life support may be short- or long-term.
• Palliative care: This seeks to manage pain and stress caused by serious illnesses. Even if you opt out of particular life support procedures, palliative care can help maintain your quality of life in your final days.
• Nutrition and hydration: If you cannot eat or drink because you are incapacitated (e.g., an accident or illness leaves you in a prolonged coma), several medical interventions can supply your body with nutrition and hydration. Common examples include tube feeding and intravenous (IV) drips. Patients can sometimes be kept alive for years using these interventions.
• Organ donation and body disposition: When you die, your living will can specify what should happen to your organs and body. For example, you can specify whether you want to be buried or cremated. Many people also donate their organs to other patients or their bodies for research.
• Religious or philosophical preferences: Your living will can also provide instructions that implement important nonmedical preferences.

Each state has laws governing living wills, so consult your local rules for special requirements and restrictions.

The Benefits of Creating a Living Will

Each person has a right to bodily integrity and personal autonomy. You have a constitutional right to refuse medical treatment. A living will implements this right by outlining your health care wishes in advance.

A well-drafted living will is a legally binding document and assures that your wishes will be honored. With this document in place, others may make decisions for you that you would have made yourself.

There are other benefits as well. Guidelines in your living will provide clarity to health care providers, guiding them when making life-sustaining decisions.

Living wills also can reduce conflict among family members as they confront the possibility of death or permanent incapacitation. Making your wishes clear can ease the emotional burden on your loved ones as they try to do the right thing on your behalf.

Should You Also Have an HCPA?

A health care power of attorney, or medical power of attorney, is a legal document that gives another individual authority to make health care decisions on your behalf. If you choose that individual carefully, an HCPA can be a useful supplement to your living will.

Living wills set out specific permissions and restrictions related to your end-of-life care. HCPAs are more open-ended. The authority they grant is not limited to end-of-life scenarios. Instead, they allow someone to make general medical decisions when you are incapacitated.

That said, you can limit the scope of authority an HCPA creates. You can make clear that any decisions made under the HCPA should not conflict with instructions in your living will (in case this wasn’t clear). Further, an HCPA can give someone authority to enforce the care preferences described in your living will.

The legal terminology relating to HCPAs varies from state to state. An HCPA is sometimes known as a "health care proxy," "appointment of a health care agent," "designation of a health care surrogate," or "durable power of attorney for health care."

The person empowered by an HCPA to act on your behalf is variously known as a "proxy," "agent," "surrogate," or "attorney-in-fact."

What Other Estate Planning Steps Are Important?

In addition to health care directives, consider other estate planning documents and vehicles for transferring wealth. These include:

• Last wills and testaments
• Revocable living trusts
• Life insurance policies with beneficiary designations
• Retirement accounts with beneficiary designations
• Joint ownership with right of survivorship for real estate

Estate planning, while you are of sound mind, can bring peace of mind. Advance planning can also allow you to implement strategies to maximize the assets you can pass on to your loved ones.

Tax Planning

For example, gifting during your lifetime can reduce your estate to avoid the federal estate tax. Making gifts up to the exemption amount in your lifetime will allow you to reduce your estate without paying gift tax.

You can also use tax planning to pass assets to a surviving spouse tax-free. This can further reduce your estate, which would be subject to taxation.

Last Will and Testament

Advance planning can allow you to name the person of your choice as your personal representative in your last will and testament. You can name a guardian for your children if both parents pass while the children are minors.

Your last will and testament can also list personal property. You may want to specify that certain pieces of your tangible personal property should go to a particular individual after your death.

Avoiding Probate

Engaging in estate planning will allow you to determine whether you can take steps to simplify or avoid the probate process. Depending on how you structure your estate, you can reduce the need for probating a will and opening an estate in probate court.

An estate planning attorney can help you determine what legal documents and strategies to use. A local estate planning attorney can provide legal advice about creating a living will or any other aspect of your estate plan.

Need Help Creating a Living Will?

The thought of losing control of your body or the ability to make your own decisions can be unsettling. But incapacitation need not leave you powerless over your health care decisions. Through planning, living wills ensure that treatment decisions in a worst-case scenario are, in fact, your own choices.

A comprehensive estate plan includes living wills and other advance care directives. FindLaw’s do-it-yourself estate planning tools can help you draft your living will according to the laws in your state. If you have further questions or need legal advice about any estate planning document, a local estate planning attorney can help.