What Is A Living Will? | How It Works & Why You Need One (Full Guide)

It is a situation that most people do not want to think about, but many people face it every day. What would happen if you were in the position of not being able to make your own decisions about medical treatment? Perhaps you are involved in an accident an incapacitated. Who is going to make those decisions about potential life-saving treatment? Do they know your wishes when it comes to health care? With a living will, you can make those wishes known and even appoint someone to make decisions for you. This simple legal document can avoid disputes between family members and even court battles in some cases. If you have a last will, you should know that is not the same thing. Keep reading as we explain everything you need to know about a living will including how it works and how you can create one.

What Is A Living Will?

A living will is a legal document that informs hospitals or doctors about the type of treatment that you wish to receive in life-threatening situations should you be unable to communicate your wishes. This document might also be called an advance directive or health care proxy in some states. Using a living will, you can specify your wishes when it comes to things like life support or feeding tubes. Your medical professional will only consult your living will in the event of a life threatening situation. If the situation is not life threatening, then these end of life decisions are generally not necessary.

Without a living will, your family members might be left to make these medical decisions for you. This can lead to fighting among family members and even legal battles. In the meantime, your medical care might be delayed while a court sorts out the arguments. A living will is an important part of your estate planning, and you should make sure that you have one in place for those important health care decisions. This prevents your loved ones from being faced with the difficult decision-making tasks associated with end of life care.

How To Make A Living Will

Making a living will, or advance health care directive, is not difficult. The specific process varies depending upon the state in which you live, but the general process is the same. You simply need to lay out your wishes in the document, sign the document, and have it witnessed or notarized. You can generally appoint a health care agent or health care proxy in the document as well. This names a person to make health care decisions for you should a situation arise that is not otherwise covered in the document.

Some states allow you to create your own detailed document and list specific situations in it. Other states require that you use their approved state-specific form and simply fill in the blanks. Either way, an estate planning attorney can assist you with the proper procedures in your state. You will want to make sure that the living will you create is valid so that your health care providers will abide by it. This helps to ensure that your health care wishes will be carried out and gives you peace of mind that your family will not be forced to make those decisions. It can also avoid emotional court battles over treatment decisions related to a terminal condition. As sad as it may seem, even life insurance can have an effect on your family’s decision making process, and they should not have to be put in that situation when it could be avoided.

 

Situations Covered By A Living Will

There are many situations that might be covered by a living will, but they generally always involve a life threatening situation. Some of the more common situations include the decision of whether to receive certain types of life-sustaining care such as electric shock, blood transfusions, dialysis, or tube feeding. In addition, a person may decide to include a “Do Not Resuscitate order (DNR)” in their living will. This is essentially a medical directive that instructs their caregivers not to perform resuscitation procedures in the event that their heart stops beating. In most states, it is not necessary to have a living will to establish a DNR order. You can simply inform your doctor or hospital, and they generally have a form that you can complete to establish this order.

Another common situation is decisions about pain management and palliative care. While someone may not wish to have a feeding tube or other similar treatment, they may still wish to receive pain medications to make their end of life as comfortable as possible. Living wills can also include instructions about organ donation after death. Finally, the document might also cover some situations which may not be considered life threatening. If a doctor has stated that the person is in a vegetative state or is unlikely to regain consciousness, the living will might still take effect even though no life threatening injury took place.

 

Power Of Attorney VS Living Will

A power of attorney and a living will are two separate and distinct documents. However, it is a good idea to have both in many cases. A standard power of attorney allows you to name a person to act as your attorney in fact. This person can act in your place when it comes to financial transactions or other business. You can grant the person general powers which allow them to do anything that you can legally do or you can grant them specific powers for one specific transaction.

A health care power of attorney works with a living will. While your living will attempts to cover every possible health care situation, it is impossible to predict what might happen in the future. These documents are sometimes called a durable power of attorney or medical power of attorney. The document basically allows you to name someone to make medical decisions on your behalf, and this document remains valid even in the event that you become incapacitated. The person that you name could be a spouse, other family member, friend, or anyone that you trust to make these decisions on your behalf.

You might also hear about something called a living trust. This is another tool used in estate planning that must be created while you are still alive. When it comes to a living trust vs a will, many people choose to have both. You should also know that a living trust and a living will are not the same thing. A living trust, living will, and last will are three separate and distinct documents that are used for different purposes.

 

The Bottom Line

There is a big difference between a living will and a last will and testament. Both documents are extremely important, though a living will has legal power while you are still alive. A last will does not take effect until after your death. You can use a living will to express your wishes when it comes to end of life health care. This ensures that your wishes are carried out and prevents your family from needing to make those difficult decisions. Some states require a living will form to be completed while other states allow you to draft your own. You should consult an experienced estate planning attorney for assistance and make sure that you have all the necessary documents in place today.

 

Frequently Asked Questions

What is the difference between a living will and a will?

Many people wonder about the differences between a living will vs a will. A living will is valid while you are still alive and is used to make health care decisions in the event that you become incapacitated. A will (or last will and testament), on the other hand, only takes effect after your death. The will is used to distribute your assets after death and guide your estate through the probate process. You might hear some people use the term “living will and testament.” However, the “testament” portion is associated with a last will and not a living will, so that term is technically not correct.

What are the benefits of having a living will?

One of the biggest benefits of having a living will is the fact that you can rest easy knowing that your wishes will be carried out when it comes to your health care. You can also avoid situations where your family is stuck making difficult decisions regarding your health care treatment. By making these decisions in advance, your family is not put in that difficult position, and you can rest easy knowing that your wishes will be adhered to.

 

What happens to my living will when I die?

Your living will basically has no effect after you die. However, there are a couple of exceptions. You can use a living will to leave your body to science and research or become an organ donor. In that case, your living will would still have effect until the organ donation was completed. But, at a high level, there are no more medical treatment decisions to be made after your death, so your living will would be of no use.

 

When is it time to make a living will?

You can make a living will at any time as long as you are an adult of sound mind. Once you become incapacitated, then it is too late to make one. So, you should go ahead and create one today if you do not already have it. A living will is something that all adults should have as part of their estate plan, so go ahead and talk to your estate planning attorney today if you do not have one in place. You should also go ahead and make a will if you do not have one in place. Some people choose to use an online will, but those are often not state specific. You should always check with a local attorney when getting ready to write a will or create a living will.

Elliot Marks

Elliot Marks

Author & Social Security Advisor

Elliot Marks has spent over 10 years providing clear and concise information to help Americans navigate the complex nuances of social security and many other government services in the United States. Elliot has a passion for helping those in need of these services to be able to find timely access to news and information that is relevant and helpful to their daily lives.