Living Will / Advance Health Care Directive

Most of us will become disabled at some point in our lives. This may be during the final few hours of our life or the last few years. We may also become incapacitated for some time, before recovering the ability to make decisions on our own.

Having a right estate planning documents in place during such periods of incapacity can help ease the decision-making burden on your loved ones, and avoid unwanted medical procedures.

What is an Advance Directive?

Advance Directives are estate planning documents that, among other things, allow an individual to express in advance their preferences for medical care, based on their personal values, attitudes, and illness or injury.

All 50 states have different types of Advance Directives, and most states recognize the Advance Directives properly created in another state. One of the most important Advance Directives an individual should have in place is a Living Will, also called an Advance Health Care Directive.

What is a Living Will?

A Living Will is an Advance Directive that specifies what medical treatment an individual wishes to consent to (or decline) should they become incapacitated or unable to express their wishes. This includes specific instructions regarding life sustaining measures, such as cardiopulmonary resuscitation, mechanical ventilators, and artificially provided fluids and nutrition.

A Living Will becomes effective once a doctor declares you incapable of making your own health care decisions, at which point, your health care providers and agents must honor your wishes, as long as they conform to generally accepted health care standards.

Living Will vs. Durable Power of Attorney for Health Care

Many people get confused when it comes to the difference between a Living Will and a Durable Power of Attorney for Health Care. Many believe that these are just two different names for the same thing, but they are not.

A Living Will only leaves instructions regarding end-of-life issues, such as when you are in a persistently vegetative state and a decision has to be made to keep you on a ventilator or not, while a Durable Power of Attorney for Health Care covers a lot more.

A Durable Power of Attorney for Health Care is an Advance Directive that enables you to appoint an agent who will make health care decisions on your behalf when you become unable to make them yourself. If you are unconscious and need someone to communicate with healthcare providers, your Durable Power of Attorney for Health Care will authorize your agent to do so.

For instance, if you have advanced Alzheimer's and a question is raised whether you should have surgery for a medical issue, a Durable Power of Attorney for Health Care will allow your agent to decide. This may not be a matter of life or death, but someone will still need to make that decision for you.

Both a Durable Power of Attorney for Health Care and a Living Will are important estate planning instruments, and they often come in the form of one document. But many states require them to be separate documents.

Some Things to Keep in Mind When Drafting Your Living Will:

  1. Make Sure Your Living Will is Where It Needs to Be

    You must make certain that your Living Will is given to your doctor or health care provider. A well-drafted Living Will is no good to you if it is lying in a desk drawer at home when it is needed at the hospital. You may also want to carry a copy of your Living Will whenever you go on a trip.

  2. Your Last Rights

    A Living Will can even dictate what happens to your bodily remains after your death, such as your desire to make anatomical gifts and any limitations on their use. It can also indicate whether you prefer cremation or a conventional burial, as well as, any other ceremonial or specific tasks you would like to have carried out as part of your funeral or burial proceedings.

  3. Living Wills Vary from State to State

    The laws governing Living Wills vary from state to state. Because of this, it is necessary to have your Living Will written in such a way that it is valid in every one of the 50 states. Your Living Will should contain the provisions necessary to render it valid whether you require a procedure at a hospital in California, or in another state like Texas or Florida.

  4. A Living Will Must be Drafted Before it is Needed

    Your Living Will plays a vital part in your estate plan and must be drafted to clearly express your preferences for medical treatment in the event you become incapacitated. But it must also be drafted before it is needed. In other words, it must be drafted at a time when you are fully alert and able to fully comprehend your choices and their consequences.

If you would like to ensure that your preferences for end-of-life care are expressed, and spare your loved ones from having to make very difficult life or death decisions for you, an experienced estate planning attorney can help you draft an effective Living Will. Consult with an experienced estate planning attorney in the state in which you live for more information.