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What’s a Living Will?

Protecting the life you have built for people you love.
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September 15, 2022 •  Emily Hicks Law, PLLC
During a medical crisis, loved ones must often make decisions quickly on whether to withhold or provide life-sustaining treatments.

A Living Will is a document providing specific instructions regarding your wishes if you are not able to communicate with those around you. It’s a scary scenario to contemplate but having a living will means your wishes will be known to those you love, and they will be spared the anguish of guessing what you might have wanted.

A recent article titled “How Does A Living Will Work?” from Forbes explains how it works. Unlike a Durable Power of Attorney for Health Care, which permits your named agent to make medical decisions regarding care if you become incapacitated, the Living Will concerns issues when there’s no hope of a recovery or a cure.

The living will expresses your desire for receiving or declining medical care or life-sustaining treatments. Each state has its own laws on Living Wills, including how each state defines life-sustaining treatments, restrictions and instructions allowed to be included in a Living Will. You’ll want to speak with a local estate planning attorney to be confident your Living Will is compliant with state law.

The person named in the Living Will is known as the “declarant” or “principal.” The person who is empowered to carry out your wishes may be called the Health Care Proxy, Attorney-in-Fact, or other name, which varies from state to state.

This is a serious document, since it concerns the authority of the Health Care Proxy to either withhold or withdraw life-sustaining treatment or equipment. You’ll want to choose a person who you trust completely to fulfill your wishes.

The Living Will is used only in cases where your condition is not expected to improve, and any treatment would only extend your life for a limited period of time. The timeframe of life extension is usually six months or less. It’s not for use for routine medical care.

Advances in medicine have led to many different ways of keeping people alive, which brings the issue of whether people want to be kept alive if they are seriously ill or injured. The Living Will should address life-sustaining treatment including but not limited to ventilators, feeding tubes, heart-lung machines, hydration via IV or a feeding tube, dialysis, or cardio-pulmonary resuscitation (CPR).

A Living Will can also be used to address measures including pain management and palliative care. It’s also possible to include provisions as specific as where you would prefer to die—at home or in a hospital. The more information provided, the more likely your proxy will be able to honor your wishes. If you’d prefer to die at home in a favorite chair, for instance, this can be conveyed in the Living Will.

What about an Advance Directive?

The phrase “Advance Directive” is used to include a number of legal documents, including Power of Attorney, Health Care Proxy and Living Will. All of these documents should ideally be prepared by the same estate planning attorney to ensure do not contradict each other.

A Last Will and Testament is used to distribute possessions after death. It doesn’t become effective until after death, compared to the other Advance Directives, which are used while you are living.

An elder lawyer can prepare a living will and other advance directives according to your wishes and in compliance with your state’s laws. Remember to update these documents every few years, as your wishes and relationships may change over time.

Reference: Forbes (Aug. 18, 2022) “How Does A Living Will Work?”

Suggested Key Terms: Durable Power of Attorney for Health Care, Living Will, Estate Planning, Elder Lawyer, Advance Directives, Will, Health Care Proxy, Life Sustaining Treatment, Declarant, Principal, Palliative Care

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