What Is a Living Will?
If you are just getting started with estate planning, it might seem like you’re learning a new language. There’s a lot of legal terminology that isn’t commonly used in day-to-day conversation for most people. One that you’ve undoubtedly encountered, especially if you’re here now, is an advanced healthcare directive, called a living will.
In this article, we’re going to take a close look at:
- Exactly what a living will is
- How a living will works
- How it factors into estate planning
- How it relates to other estate planning documents
- If you should include one in your own personal estate plan.
We’ll also cover the various resources you can use to create one for yourself.
What Is a Living Will?
A living will is a legal document in which you declare your wishes for your end-of-life care. It provides future instruction in the event you become incapacitated and unable to communicate verbally. A living will goes into effect when a person is incapacitated and unconscious without realistic hope of recovery. A living will does not come into play for temporarily incapacitated persons who are not in a permanent vegetative state, such as someone undergoing surgery. Because living wills provide direction for end-of-life care, they cease to have power after death. At that point, a will or trust would take over.
How Does a Living Will Work?
A living will is a document where you can describe your wishes for the medical care you receive near the end of your life.
- What measures do you want taken to save your life?
- Are there any medical procedures to which you don’t want performed?
- Do you want hospice care?
- Do you want palliative care?
- Do you want a do-not-resuscitate?
- Do you want to be on life support?
A living will should address all of these.
When creating their living will, many people also create another corresponding advance care directive to specify their health care power of attorney — the person who makes medical decisions on your behalf if you’re unable to do it yourself. For many, it’s their spouse, partner, family member, or a trusted friend. This is not a position to surprise someone with — communicate this responsibility to them and review your living will so they’re familiar with your desires and reasoning.
Living Wills vs. Living Trusts
Despite their slightly similar name, living wills and revocable (and irrevocable) living trusts serve very different purposes. The purpose of a living will is to provide advanced guidance regarding your medical care as you reach the end of your life, whereas a living trust is a tool to avoid probate court, identify a trustee, and instruct how property and assets should be distributed.
Living Wills vs. Last Will and Testament
It’s easy to confuse a living will with a last will and testament. Unlike a living will, a last will and testament is a legal document that identifies the beneficiaries who will inherit your physical and financial possessions after you die, and it also names guardians to care for minor children or other dependents.
Living Wills vs. Ethical Wills
Also quite different from the living will is the ethical will. Ethical wills are a very interesting aspect of estate planning that has existed in Jewish traditions for a long time and is now getting attention in the Western world. Ethical wills are documents that pass on your ethical values, life lessons, experiences, and philosophies. In essence, it communicates your mental and emotional assets.
Do You Need a Living Will?
A living will is an important component of estate planning for everybody. It doesn’t matter if you have a lot of material assets or not. The purpose of a living will is to ensure that the end-of-life care you receive is in line with your wishes. So, the answer is yes — you do need a living will. Unlike other estate planning tools that exist to avoid probate court or minimize estate tax, a living will could have a major impact on your physical comfort during your final days. Without a living will, other people will make those decisions for you.
How to Write a Living Will of Your Own
Although the exact technical requirements for a living will vary from one state to another — whether it has to be witnessed or notarized, for example — creating a living will does not have to be a complicated process. If you’re already working with an estate planning attorney, they can undoubtedly help you prepare the document and include it in your overall estate plan.
Whether you hire an attorney to write a living will for you, or you create one yourself, make sure you have one as part of your overall estate plan. Do not leave your medical decisions in the hands of people that you haven’t designated and do not unwittingly burden your friends and family. Take the steps to create a living will, share it with your health care power of attorney, and store it securely.
Where to Keep and Store Your Living Will
A living will is similar to other estate planning documents in where you should store it, which is with the rest of your estate planning portfolio. A safe deposit box, a locked file cabinet, encrypted in the cloud, or a secure service like The Postage – it’s your call. One way however, that it differs from some of those other documents, is that you might share your living will with your physicians or care providers.
This is especially true if you have a chronic health condition or disease that may get progressively worse over time. For example, many people with Alzheimer’s disease communicate their end-of-life medical care decisions to their doctor early in their diagnosis. It’s more advantageous for the contents of your living will to be known by your healthcare providers, medical power of attorney, and trusted loved ones.
Every Estate Plan Should Include a Living Will
Less than a third of adults document their healthcare directives or designate a medical power of attorney. Nobody is exempt from responsible estate planning and, unfortunately, many people end up in situations where they don’t have a living will and spend the remainder of their life in a much different situation than they envisioned.
The good news is that getting your estate-planning documents in order is achievable, and doing so will provide tremendous peace of mind in knowing that you’ve made some of the biggest decisions you’ll ever have to make. Take the steps necessary to create a will and the various trusts, if you need them, so that your responsibilities are accounted for. Keeping your loved ones from having to make those decisions will be a gift to them, and it’ll ensure your final days align with your desires.
