Living Wills Overview

By James Parker
/
May 4, 2022

A last will and testament is a vital document that most people have already heard about. It may sound strange then, to discuss a living will. Living wills are an example of a very important legal concept that some people may not know about.

A living will can be an invaluable tool for planning your ideal blueprint for end-of-life care. In this seven-point guide, you will learn the key points of what a living will is, how it can help you plan ahead, and when the best time to write one is.

1. A living will is more than a standard last will and testament

A living will is defined as a legal document that expresses the wishes or preferences of an individual with regard to their healthcare. That’s a fancy way of saying that a living way records your wishes about how you want to be treated medically.

In addition to being called a living will, you may hear this document being referred to as a “health care directive,” or an “advanced directive.” No matter what you call it, a living will is a legally binding document that directs your family members and your health care providers about the specific details for how you would like to be treated once you are unable to advocate for yourself. By writing a living will, you will be able to advocate for yourself legally even if you cannot physically argue your case.

2.  Living wills allow you to dictate a number of important decisions

A living will allows you to outline some very large decisions in advance. This advance notice will become the legally binding guidelines that doctors and family members must abide by if possible. 

One decision you can write down in your living will is whether you wish to be moved once you are incapacitated. Some people are okay with being moved from their home to a nursing home, hospice, or hospital if their health requires it. However, if you would be more comfortable passing away in your own home, your living will can stipulate that you would like to receive at home care or be released from hospice to pass away on your terms.

Other uncomfortable but vital decisions can include when to administer medical care solely for the purpose of easing your pain, known as palliative care, how long you wish to be kept on life support, and whether or not you would like to be given CPR. These important, personal decisions, can be preserved in your living will to maintain their legal power.

3.  Living wills can be simple or complex

You may think that a legal document like a living will will require agonizing detail and complex rules. This does not have to be the case. A living will can vary significantly in complexity. If you would prefer your end of life care to be dictated by a few, broad rules with room for specific exceptions at the discretion of a trusted family member or doctor, that can be arranged.

Exact requirements vary by state as to what a living will must contain. In general, you are free to go into as much or as little detail as they would like with regards to how their care should be handled. This allows you to get very specific for the circumstances under which you do or don’t want life saving care.

For example, you may want to be resuscitated in most normal circumstances, unless you are likely to lose the ability to move or your ability to think would be compromised. You can write your living will to contain a clause that covers resuscitation when the consequences are likely to result in extreme disability and it can be recorded in case the scenario you describe arises.

4. Living wills are not permanent

You may feel like a living will is a legally binding document that cannot be changed once you write it. Many legal documents are difficult to change once they’ve been penned. These type of unchangeable documents are called irrevocable documents. By contrast, a living will is fully revocable.

This means that as long as you have the ability to communicate your wishes and are not declared incapacitated, you can make changes to your living will. These changes can include choosing to discard the living will entirely. Even if you are in a difficult situation with a living will, as long as you are coherent, the on-site physicians will ask your preference for your care.

In general, a living will is turned to as a last resort that is chosen once it becomes clear that you can no longer speak your wishes.

5.  Living wills can also establish a power of attorney

In addition to establishing set rules for your care, a living will can also establish a power of attorney. Power of attorney is a legal right for an agent of your choosing to act on your behalf.

In general, a power of attorney exists to enforce your wishes in a situation in which you cannot speak for yourself. A power of attorney can be given specific rules to follow and is chosen by you to follow those rules. Your agent will be able to exercise full authority over your medical affairs as though you were conducting them yourself. This can be an invaluable tool to ensure your care is in line with your wishes. 

For example, if you had a religious opposition to receiving blood transfusions but were not conscious due to an accident, your power of attorney could refuse the transfusion on your behalf.  

6. The power of attorney established by your living will can be limited by you

Though power of attorney is a significant power to grant, your living will can also establish limits on that power. If you are uncomfortable with granting someone full time power of attorney, you have options that limit the ways and times that your agent can act using your authority. 

A durable medical power of attorney gives your agent standing power to make medical decisions on your behalf. This does not override your own authority since power of attorney borrows your rights, it does not remove your right to speak on your own behalf. 

There is another power of attorney known as springing power of attorney. This agreement only allows your agent to “spring” into effect once certain requirements are met. Usually the requirements involve you being unconscious or otherwise unable to speak on your own behalf. This type of power of attorney can have some delay in becoming active but it is an option for you if you are concerned about giving someone your authority full time. 

7.  A living will needs a trusts & estates attorney to implement 

Living wills are an invaluable resource for planning your end of life care. In order to establish this vital resource, you will need a living will agreement that is legally binding. In order to ensure your living will works as you intend it to, and to make sure it will be acknowledged by a court, you should consider consulting with a trusts & estates attorney. 

An experienced trusts & estates attorney can ensure that your living will meets all the necessary requirements to be considered valid by the courts while also enshrining your wishes in clear, unmistakeable language. If you plan on establishing a power of attorney, your trusts & estates attorney can also limit that individual’s powers to prevent abuse or overreach.

 AAL has a number of experienced trusts & estates attorneys who can advise you on the best way to preserve your legacy and your wishes by establishing a living will or durable power of attorney. 

 

*Disclaimer: Attorney At Law does not represent all lawyers in all states. There may be differences of opinion. It’s always advisable to consult with an attorney when in a legal situation.

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