Introduction
A living will, also known as an advance healthcare directive, is a legal document that spells out your healthcare preferences, especially concerning end-of-life medical treatment. Should you become incapacitated—such as entering a coma, while under anesthesia, or as a result of mental illness—and you are unable to communicate important decisions, your doctors will rely on the directions in your living will. This is completely separate from a last will and testament, which directs your assets after you die. A living will only takes effect during your lifetime if you are incapacitated, and has no effect after you die.
Why is a Living Will Necessary?
Healthcare and incapacitation is unfortunately a very real prospect in life. Not just for the elderly—there is no age-limit to chronic illness or serious accidents; a 25-year-old can enter a coma just as easily as a 75-year-old. To prepare for the unexpected, estate planning attorneys recommend drafting a living will to make your healthcare and treatment preferences known should you be unable to communicate them. Topics commonly addressed in a living will include palliative care (treatments to decrease pain and suffering), resuscitation (e.g. by performing CPR or defibrillation), artificial life support, and tube feeding. Per resuscitation, this is where you can sign a do-not-resuscitate (DNR) order if you wish to be allowed a natural death. While the living will is only valid during your lifetime, some people use the document to indicate if they wish to be an organ donor. Note, however, that doctors will only consult your living will if you are incapacitated. As long as you are able to communicate, doctors will always go off your verbal directions.
How to Create a Living Will
A living will is easy to draft and fairly universal in format, however there are some states that impose requirements governing the language, content, witnesses, and notarization of the document. It’s best to consult with an attorney to check the requirements in your state. If you ever need to make any changes down the road, you can amend your living will at any time, and you can revoke and replace it if necessary.
Healthcare Power of Attorney
Many people are familiar with the durable power of attorney, where you can authorize someone to act as an agent on your behalf to handle your affairs. It’s commonly used to grant someone access to your financial accounts so they can pay your bills if you become incapacitated, but it can also be used for healthcare. By granting someone a healthcare power of attorney, the individual you choose can access your medical information and make important decisions on your behalf if you cannot communicate them yourself. This individual, also known as a healthcare proxy or an attorney-in-fact, will be bound by the directions in your living will. Having a living will and a healthcare power of attorney may sound redundant, but having both makes it much easier for your family in emergency situations, so they are not left to a best guess about what kind of treatment you’d prefer.
Choosing a Healthcare Proxy
Most people choose their spouse or an adult child to serve as their healthcare proxy, but you are free to authorize anyone you choose. If your primary choice is aging or facing health challenges, it may be wise to nominate a backup proxy in case the primary proxy passes away before you. Whomever you choose, have a frank discussion with them about your preferences, and make sure they have a copy of your living will.
Living Will vs. Last Will and Testament
Unlike a living will, your last will and testament (simply referred to as a will) dictates how your estate will be transferred to your heirs after you die. To put it simply, a living will takes effect near the end of your life, and your last will and testament applies after you die. Both will require a certain format with signatures, witnesses, and possibly notarization, but their scopes are drastically different.
A will can only direct assets subject to probate, such as individual bank accounts and brokerage accounts, personal property (cars, jewelry, collectibles, etc.), and real property titled individually or held as tenants in common. These items will pass to your heirs (listed in your will as beneficiaries) through probate court. Non-probate assets—such as retirement accounts, life insurance death benefits, accounts with transfer-on-death (TOD) or payable-on-death (POD) beneficiaries, and assets held in joint tenancy—will pass to your beneficiaries outside of probate, and therefore don’t need to be addressed in your will.
A last will and testament can also be used to nominate guardians for your minor children, establish trusts, and to indicate your plan for funeral and burial. Consult with an attorney in your estate to understand your state’s requirements for a valid last will and testament.
What if I Die Without a Will?
If you die without a living will, nothing changes. The living will is only valid during your lifetime, and only applies to medical decisions, so not having a living will would have no effect on your estate. On the other hand, if you die without a last will and testament, your estate will be considered intestate, and will be distributed to your heirs according to your state’s intestate succession laws.
What Other Estate Planning Documents Do I Need?
There are five documents that most estate plans should include:
- A last will and testament
- A living will
- A healthcare power of attorney
- A durable power of attorney
- A letter of intent
We’ve already discussed the first three—the will, the living will, and the healthcare power of attorney. We also briefly touched on the durable power of attorney, which authorizes an agent to act on your behalf in managing your affairs and handling your finances. That leaves the letter of intent. A letter of intent is intended to clarify anything listed in your will, so it can discuss just about anything you want. In the purpose of this conversation, however, it can be used to indicate your plans for your funeral and burial. This information will probably be in your will, but oftentimes your will is not opened until after your funeral, at which point its instructions on the matter are too late. Leaving a letter of intent with a loved one ensures they know your preferences on the matter, especially how you intend to pay for the services.
Call our Estate team at (480)467-4325 to discuss your case today.