Did you know that there is a way to maintain control over your medical decisions even if you were to become incapacitated? This is possible if you create a living will, a legal document that details your wishes for your medical care in the event you are unable to make decisions for yourself. A living will outlines your preferences so your family and doctors know what to do if you are unable to voice your preferences, for instance, if you find yourself sustained by artificial life support or reduced to a persistent vegetative state.
A living will is an important piece of every estate plan, but many people do not know how these documents are used. Here, we discuss five things you might not know about these vital documents, which you can and should discuss with your attorney long before the need for one arises.
- A “Living Will” is not A Last Will and Testament.
If you have a last will and testament, or “will,” then you probably assume you do not need a living will. Right?
Not so fast. A living will and a last will and testament are distinct documents with different intentions. A last will and testament details how you want to distribute your property after you pass. That document only applies after your death. On the other hand, a “living” will only applies while you are still alive, and it has nothing to do with your assets or property. Rather, a living will details your decisions and preferences for your medical care should you find yourself in a place where you cannot communicate them yourself. Specifically, a living will sets forth what medical treatment you want should you be sustained by life support or find yourself in a state of reduced capacity. By clearly stating your wishes ahead of time, a living will gives you peace of mind about these difficult decisions. It also helps your family members when it comes time to decide what type of life-sustaining care you should be granted.
For example, some people decide they do not want to be given any extraordinary forms of nutrition or hydration if a certain number of medical professionals declare that there is no hope of recuperation. Others specify specific means that they would like administered, and which they prefer to avoid.
- A Living Will Is Not A DNR Order.
People often confuse living wills with “do not resuscitate” (DNR) orders. A DNR order is an agreement a patient makes with his doctor that he does not wish to be resuscitated if he suddenly becomes unconscious. This is mostly used after surgery or other hospital procedures. For example, if a patient has a DNR order in place and becomes unconscious while recovering from surgery, the hospital will not resuscitate the patient, even if that procedure might have saved his life.
In the situation above, a living will would have no bearing on the hospital’s decision. Medical staff would likely still attempt to resuscitate the patient unless a DNR order dictated otherwise. A living will does not automatically grant that a person will not be resuscitated during a momentary lapse in consciousness. Rather, a living will is only invoked in limited circumstances – when the person is unconscious, terminally ill, and there is no reasonable chance of recovery.
- Living Wills Go Hand-In-Hand with Healthcare Proxies.
If you have a living will or plan to execute one, consider drafting a healthcare proxy, too. Also called a healthcare power of attorney, a health care proxy is a person who is responsible for making health care decisions on your behalf when you cannot. A living will only applies when you are permanently unconscious and unable to communicate your wishes. However, in some situations, you may become temporarily unconscious, like after an accident. While these situations might not trigger the authority of your living will, you might still want a trusted person to make decisions on your behalf. In this case, your healthcare proxy would make those decisions. This person would also ensure the wishes in your living will are carried out properly if you were to become permanently incapacitated.
- A Living Will Is Not Just for the Elderly.
You might think that a living will is just for the sick or the elderly, but this is untrue. Anyone over the age of eighteen should consider drafting and executing a living will. Accidents and illnesses occur every day, even to young adults who otherwise feel healthy and invincible. Without a living will, your spouse or parents are likely to be faced with difficult decisions about how – and whether – to continue life-sustaining treatment for you. Memorializing your wishes in a living will is a way to bring them – and you – some mental and emotional security.
- You Can Revoke or Update Your Living Will at Any Time.
Making decisions about end-of-life care can be daunting. No one wants to ponder their mortality, and so they put off drafting their documents ad infinitum. But the uncomfortable reality is that an accident can happen to anyone at any time. Even if it is uncomfortable, spend some time deciding how you feel and what you believe about end-of-life care. Do you have specific moral or religious beliefs that dictate how you want to be treated? Are there family members you want to be deeply involved in the decision-making process?
Keep in mind that getting something in place is better than waiting for perfect certainty: if you change your mind about your decisions or preferences, you can revoke or update your living will document at any time. Nobody else can do this on your behalf without your permission – you are the only person who can change your own living will. Remember, though, that a living will is a legal document that might be included with your other estate planning documents or files. So if you decide to change or revoke yours, be sure to track down all copies and provide anyone who might have had an old version a copy of the new one to be sure your current wishes will be followed.
Bottom line: get something in place now. It’s okay if it isn’t perfect.
Experienced Estate Planning Attorneys
At Wilson Ratledge, we assist clients in various aspects of estate planning, including drafting and executing living wills. Our experienced estate planning team can discuss your options and help you decide how to best proceed. Contact one of our attorneys today at 919-787-7711 or via our contact form below.