We mentioned in a previous post the three documents that make up most estate plans; the Last Will and Testament, the Living Will and the Power of Attorney. So I thought we would discuss in a little more detail the Living Will; what it does and why you may need it.
The topic of Living Wills is another one with a number of confusing terms which may or may not mean the same thing, and an area where there is no consistency in the use of these terms. You may see the term “Advance Health Care Directive” used interchangeably with Living Will, but we tend to use that term as a collective name for both the Living Will and your Healthcare Power of Attorney (another term that has many, many variations depending on where you live).
In essence, the Living Will allows you to state ahead of time the types of medical treatment you wish to receive if you were ever in a condition where you were unable to communicate those wishes. It is a document that is in effect while you are alive (unlike the Last Will and Testament), but the law determining what can go into a Living Will and under which circumstances it can come into effect vary by each jurisdiction. The main reason for creating a Living Will is to avoid family turmoil when loved ones are expected to decide how long to preserve your life if you are in an irreversible, persistence vegetative state. The situation that everybody wants to avoid was probably most graphically illustrated a few years ago with the Terri Schiavo case . The types of treatment usually requested or denied in a Living Will are things like analgesia (pain relief), antibiotics, hydration, feeding, and the use of ventilators or cardiopulmonary resuscitation.
The document that complements the Living Will is the one that names a Healthcare Proxy or “Power of Attorney for Healthcare”. This document names somebody who can make healthcare decisions on your behalf if you were ever unable to speak for yourself. This will typically be authorizing certain types of treatment, or potentially refusing some treatments. This person has the same rights to refuse treatment as you would have yourself. The decisions though would most likely be guided by directions provided in the Healthcare Power of Attorney document or Living Will.
We encourage all of our clients to prepare a living Will and Healthcare Power of Attorney. President Obama publicly stated last year that he has one and encouraged everybody to write their own. He said
“You may be familiar with the principle behind a living will, but it basically is something that my grandmother, who you may have heard recently passed away, it gave her some control ahead of time so that she could say, for example, if she had a terminal illness, did she want extraordinary measures even if, for example, her brainwaves were no longer functioning? Or did she want just to be left alone? You know, that gives her some decision-making power over the process. The problem is, right now, most of us don’t give direction to our family members and so, when we get really badly sick, sadly enough, nobody is there to make the decisions and then the doctor, who doesn’t know what you might have preferred, they’re making decisions in consultation with your kids or your grandkids and nobody knows what you would have preferred.
So I think the idea there is to simply make sure that a living will process is easier for people. It doesn’t require you to hire a lawyer or — or to take up a lot of time, but everything is going to be up to you.
And if you don’t want to fill out a living will, you don’t have to, but it’s actually a useful tool, I think, for a lot of families to make sure that, you know, if, you know — you know, Heaven forbid, you contract a terminal illness, that you or somebody who’s able to control this process in a dignified way that, you know, is true to your faith and true to how you think, you know, that end-of-life process should proceed?
You don’t want somebody else making those decisions for you. So I actually think it’s a good idea to have a living will. I’d encourage everybody to get one. I have one; Michelle has one. And we hope we don’t have to use it for a long time, but — but I think it’s something that is sensible.”
Unlike a Last Will and Testament, you may never need a Living Will. It depends on the circumstances behind your demise. Unfortunately, by the time you need one, you will be in no position to create one. At LegalWills, you can create one in about 20 minutes and it isn’t expensive at all.