Living Wills: Introduction
Living wills are not wills at all. Rather, a living will (also known as a health care directive, directive to physicians, medical directive, or advance directive) is a legal document expressing a person's desires and preferences about medical treatment.
These documents come into play if you cannot communicate these instructions. A living will relates solely to medical care and the need to make medical decisions. You may be unable to communicate medical decisions during a terminal illness or a state of permanent unconsciousness. Your loved ones can have more peace of mind knowing that you have expressed your wishes about medical care.
Living Wills: State Laws
The first living wills helped people who wanted a natural death unattended by artificial life support and other advanced medical techniques. These documents evolved over time. They included other health care concerns such as tube feeding, resuscitation, and organ donation.
While state laws in all states allow living wills, certain state laws may require particular formalities to become effective. If valid, a living will binds health care providers to its instructions. FindLaw's easy-to-use, state-specific forms can help you get started on a living will.
What Can a Living Will Cover?
Many believe that living wills only direct health care providers to withhold treatment. While many choose to issue that instruction, a living will also allows a person to ask for all available treatment options and medical techniques. You can opt for some medical treatments and reject others.
Because a living will involves complicated medical issues, consultation with a doctor may help clarify different treatment types. Some people are reluctant to execute a living will because they worry doctors may withhold treatment when there is still a chance for recovery.
However, a living will cannot take effect legally unless the patient is at the end of life. Medical professionals must determine whether the individual is permanently vegetative or terminally ill. In those cases, the individual may be unable to communicate medical preferences.
Living Will vs. Durable Power of Attorney
Durable Power of Attorney
A durable power of attorney can perform some of the functions of a living will. This document gives an attorney-in-fact legal power to make health care decisions for someone who cannot make those decisions.
A durable power of attorney differs from a living will in that it may direct the attorney-in-fact to carry out the living will's instructions or allow the attorney-in-fact to use their judgment.
The living will can also specify a proxy to help enforce its terms. A durable power of attorney may be used whenever the individual granting the power cannot make their own health care decisions.
A durable power of attorney does not depend on terminal illness or permanent unconsciousness to become effective. Most estate planning attorneys recommend both documents to cover all situations.
Medical Power of Attorney
A medical power of attorney (or health care power of attorney) is closely related to a durable power of attorney, except that it is limited to health care decisions. A health care power of attorney (health care POA) is a legal document that allows you to designate a trusted person to make end-of-life medical decisions if you cannot communicate your own health care decisions.
Without a living will or power of attorney, family members may argue over what treatments should be provided or withheld. Doctors will only consult family members on health care decisions.
Even if you are married, it's prudent to consider a living will. With this document, you make your wishes known. This can bring great peace of mind to your spouse. When a person prefers that a friend or unmarried partner participate in their health care decisions, a living will and durable power of attorney enable that person to have a say. Otherwise, medical professionals will only consult family members.
Choosing an Attorney-in-Fact
The person chosen as the attorney-in-fact or proxy for health care decisions should be a trusted individual who is comfortable discussing health care issues. An assertive yet diplomatic person is the best choice for attorney-in-fact. This person may need to:
- Advocate for the patient's case with doctors
- Explain medical treatments to family members
- Go to court, if necessary
The representative should be well aware of the choices made in the relevant documents. Your representative should support those instructions. It may also be helpful to enlist the cooperation of friends, relatives, and health care providers by giving them executed copies of the document for their reference, should the need arise.
Other Estate Planning Documents in a Comprehensive Estate Plan
You can consider several documents as part of a comprehensive estate plan. Your goals should dictate the legal documents and estate planning strategies you use. These documents and estate planning tools can include:
- Last will and testament
- Power of attorney
- Beneficiary designations
- Joint tenancy with the right of survivorship for real property
Many strategies seek to avoid probate. Probate is when the probate court determines the will to be valid. The probate process also includes paying a decedent's debts and distributing the decedent's property.
Last Will and Testament
A will, also called a "last will and testament," ensures your personal property is passed on. A testator can use a will to leave items to loved ones. They can also appoint guardians for minor children and other dependents in a will. For example, if you do not transfer the following assets outside of the probate process, the probate court will look to the will or the laws of intestacy to distribute the property:
- Real estate
- Bank accounts
- Life insurance policies
- Other personal property and assets
With a will, complicated issues may arise with passing your belongings along. Typical issues include going to probate court, challenges to your will, or your assets being sold to cover debts. Additionally, the probate process is a matter of public record. Therefore, it does not provide privacy for your beneficiaries. As such, many individuals seek to avoid probate by using other estate planning tools to distribute assets.
A trust is one way to avoid probate. When assets belong to a trust, they do not go through the probate process. The process is private; it is not a matter of public record. A trust is a legal document that creates a virtual container for money and property. A trustee (an institution or person) manages assets for the benefit of another (the beneficiary). The person who sets up the trust and funds is called a grantor, settlor, trustor, or donor.
A grantor transfers property to the trust. This property becomes trust assets. The trustee manages the assets for the benefit of the beneficiaries. A grantor creates a revocable living trust (inter vivos trust) during the grantor's lifetime. It can be modified or revoked entirely at the instruction of the grantor.
The grantor often serves as the initial trustee. They can name a successor trustee. This individual serves if the appointed trustee can no longer fulfill their duties.
A grantor can transfer property into the trust and remove property from the trust during their lifetime. A revocable trust becomes an irrevocable trust upon the grantor's death. Sometimes, a grantor creates a trust in a last will and testament. This is called a testamentary trust.
You can designate beneficiaries to receive direct payment following your death for certain assets. You can designate individuals or even charities as a beneficiary. Common assets for which you can designate a beneficiary include:
- Life insurance policies
- Retirement accounts
- Securities in brokerage accounts
- Bank accounts (payable on death designation)
Naming beneficiaries is an efficient and cost-effective way to transfer assets at death. This step avoids the time and expense of the probate process. Your assets will quickly pass to the designated beneficiaries upon your death.
Drafting a Living Will? Contact an Attorney for Help
Decisions relating to health care and incapacity should be carefully considered. Once problems arise, there will likely not be an opportunity to fix mistakes or provide clarification.
Contact a local estate planning attorney today. They can help prepare any estate planning document, including a living will. Concerning a living will, an estate planning attorney will ensure that your wishes are understood and enforced if you become unable to communicate them. If you use a form, like one of our state-specific living wills, an estate planning attorney can review it. They can also provide invaluable legal advice every step of the way.
Can I Solve This on My Own or Do I Need an Attorney?
- DIY is possible in some simple cases
- Cases with complex health care decisions or families are rarely cut and dry
- Attorneys offer tailored advice and answer your legal questions
- Many attorneys offer free consultations