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7 Things to Know About Living Wills

Posted by Nina Whitehurst | Jun 24, 2024 | 0 Comments

What would happen if you became seriously ill or injured and were no longer able to make your health care decisions? People of any age can lose capacity. They may have an accident, suffer a serious injury, or develop a disability at any point. A living will, a component of an advance health care directive, can outline your wishes so your loved ones can make informed decisions about your care in an emergency.

Your living will doesn't pass assets and property to your heirs like a last will and testament. Instead, it advises your doctors and family about how you want to receive medical care and may limit certain treatments.

This document can bring your family comfort in times of uncertainty, knowing they understand your health care wishes. Creating it can bring peace of mind to you and your loved ones, knowing there is a plan for medical emergencies. Here are seven things you should know about living wills:

1. Rules for Living Wills Vary by State

Depending on the state you live in, this document may be referred to as an advance directive. State requirements for living wills vary, as do the procedures for creating and executing them.

If you spend significant amounts of time in another state, ensure your living will is valid in the second state. Most states (but not all) will accept this document from another state if it's valid in the state where you created it. Check with your estate planning attorney about your state's rules. If you spend significant time out of the country, you should know the country's laws to create a valid living will while there.

2. Your Living Will Is a Binding Legal Document

Don't rely on an informally written document or verbal consent as your living will. You must document your health care wishes before you lose capacity, in compliance with state law. The language in the document must legally address instances of lost capacity, permanent unconsciousness, or a terminally ill diagnosis.

3. Medical Doctors Determine the Incidence of Loss of Capacity

Whether you are terminally ill, permanently unconscious, unable to communicate, or incapable of making rational decisions, a medical doctor's assessment, and usually a second opinion, puts your living will into effect. If you see your doctor regularly, discuss your wishes and living will to determine whether they will comply with your instructions.

4. You Can Change Your Living Will

You can revoke, revise, or create a new living will at any time. However, simply destroying the old copy complicates the connection it may have to other estate planning documents or files. Your estate planning attorney can help you fully and formally revoke or modify this document correctly.

5. There Is a Difference Between an Advance Directive and a Living Will

Numerous types of advance directive documents exist. The more familiar include a medical power of attorney, living will, and do-not-resuscitate order (DNR). A living will is a subset of the advance directive. It specifically expresses your medical treatment preferences in the case of terminal illness or loss of capacity.

6. Younger People Need One, Too

Adults of all ages can benefit from implementing this legal document. Seemingly healthy young individuals can suddenly become ill or injured. Create your living will sooner rather than later. Putting this task off could leave you in an unfortunate situation if you face an accident or serious illness.

A living will does more than convey your desire to remove yourself from life support under certain conditions. It can specify the kinds of care you prefer, including medical techniques, life-sustaining treatments, and devices you would (or would not) accept. For example, consider whether you would want physicians to use cardiopulmonary resuscitation (CPR), feeding tubes, or ventilators. You can also outline your wishes regarding pain management, palliative care, and clergy visitation.

7. Ensure You Have a Medical Power of Attorney

This power provides an individual the right to make medical decisions on your behalf if you cannot do so. A medical power of attorney is not the same as your living will, but it is part of the estate planning process. The person you name as your health care agent should understand your wishes regarding emergency treatments and end-of-life care.

Will the Medical Staff and My Family Comply With My Living Will?

Ultimately, your medical doctor is responsible for your course of treatment. He technically does not have to follow your living will; however, most doctors will do so. However, in an emergency, your doctor's choice may override your living will if the doctor feels an ethical obligation to the Hippocratic oath.

Again, speak with your doctor about your choices in advance. You also may want to share access to your medical history with certain family members. You can do this using a HIPAA authorization. These are your best courses of action to feel secure that everyone will comply with your wishes.

Having a living will is essential to a complete estate plan. Creating this document with your estate planning attorney can bring you and your family peace of mind.

About the Author

Nina Whitehurst

Attorney at Law Nina has been practicing law for over 30 years in the areas of estate planning, real estate and business law She is currently licensed in Alaska, Arizona, California, Colorado, Oregon and Tennessee. Her Martindale-Hubbell attorney rating is the highest achievable: 5 stars in peer...


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