What Is a Living Will?
A living will is used for end-of-life care and outlines your wishes concerning how you wish to be kept alive if you can’t voice them yourself.
A living will is much different than a last will and testament — while they both outline final wishes, living wills have nothing to do with property distribution.
As experienced estate planning attorneys, we've helped countless clients create living wills that express their treatment preferences. Learn more about a living will, how to create one, and a few examples of what it should include.
Why Is a Living Will Important?
A living will is important because without it, attending medical staff will use their discretion for end-of-life care treatment; even if it goes against your wants or beliefs.
We recommend that every adult have a living will. It's important to address your wishes in a living will in the event you become incapacitated, whether it's due to an unexpected accident, disease, or other medical condition that renders you unable to speak for yourself.
A living will addresses your end-of-life care, providing answers to difficult questions, such as:
Would you want to be kept alive in any situation, regardless of your ability to function or maintain any level of independence?
Are there specific medical treatments or medications you would never want to receive due to personal beliefs?
Do you want medical decisions to be made by your family members? If not, it's necessary to put together a living will to override any existing medical power of attorney.
These are all questions you have to answer before putting together your living will. It’s easy to put off establishing a living will, but you should create one as soon as possible as part of your overall estate planning process.
What Decisions Are Covered in a Living Will?
Living wills cover decisions about end-of-life medical treatment and procedures, such as:
Preferred Treatment Centers
How To Create a Living Will
We recommend consulting with an experienced estate planning attorney to create your living will. Living will requirements vary from state to state, so knowing how to properly create one makes sure it is enforceable.
In general, here are the steps to take to set up your living will:
Speak with your doctor about end-of-life care options. Being in a healthcare setting and knowing your medical history, your doctor can advise you on the best options for end-of-life care.
Talk about your care preferences with your loved ones. At the end of the day, the decisions you outline in your living will are up to you, but you should still discuss them with your loved ones. They might be able to help you make tough decisions.
Hire an estate planning attorney for legal advice and to make sure your living will is legally binding. Like most other legal documents, living wills have some nuances that an experienced attorney can walk you through.
Convey your wishes to your attorney. They will properly list them in your living will. Plus, if you left anything out, an experienced attorney can ensure your living will is as comprehensive as it needs to be.
Sign your living will in front of two adult witnesses who are not related to you. Few, if any, states require your living will to be notarized. However, it is a good idea to have your living will notarized so there will be no question as to the legitimacy of the witnesses.
Have both witnesses sign it as well.
Distribute a copy of your living will to your doctor, close family members, and the hospital you will most likely go to for end-of-life care. Make sure to take note of who has a copy so you can track them all down should you decide to amend or revoke your living will.
Can You Change a Living Will?
Yes, a living will can be changed or revoked as long as you are in a sound state of mind.
Let’s face it, things change, and few of us hold the same wants, needs, and beliefs our entire adult lives. Because of this, changing a living will is as simple as making a new one with your updated wishes and giving it to anyone who has a copy of the original one. You should also make sure all old copies are shredded.
To revoke your living will, you can either
Physically destroy all copies of it.
Sign and date a written revocation, and give it to anyone who has a copy.
Verbally revoke it in front of someone of legal age, and have them sign and date a letter stating you did so. You or your verbal witness must notify everyone with a copy.
What Is the Difference Between a Living Will and a Medical Power of Attorney?
On the surface, a living will and medical power of attorney may seem like the same thing but they are not.
They both go into effect when you become incapacitated and/or can no longer make decisions for yourself, but they serve different purposes. Here's how a living will and medical power of attorney differ from each other.
A living will is more formal — it explicitly states your wishes for end-of-life care in black and white. Caring physicians are legally bound to this document and they could face legal repercussions should they stray from it.
Medical Power of Attorney
On the other hand, a medical power of attorney simply names someone to make specific medical decisions on your behalf.
These decisions are based on conversations you have with them and wishes you tell them, but they are not legally required to follow your verbal instructions. You can, however, limit the things they can make decisions on, but not the decisions they make.
For example, you may have permitted someone to approve medications you receive and, before you became incapacitated, you told them specifics of what you wanted. Should you become incapacitated and require life-saving measures in the form of an experimental drug, they have the authority to approve this experimental drug on your behalf despite you not explicitly permitting them to do so.
To make sure your exact wishes are carried out, it’s a good idea to implement both a living will and a medical power of attorney.
Do You Need Help With Your Living Will?
To get the most out of a living will, we recommend seeking help from an experienced attorney.
After it is established, you can have peace of mind knowing that in the unfortunate event that you become incapacitated, all of your end-of-life treatment wishes will be followed.
Give us a call or contact us to get started on your living will today.