The terms “living will”, “health care directive”, and “advance directive”, all refer to the legal document that lets people state their wishes for end-of-life medical care. A living will, despite its name, isn’t at all like the wills that people use to leave property at their death. A living will, also called a directive to physicians or advance directive, is a document that lets people state their wishes for end-of-life medical care, in case they become unable to communicate their decisions. It has no power after death. If you’re helping someone with their estate planning (or doing your own), don’t overlook a living will. It can give invaluable guidance to family members and healthcare professionals if a person can’t express his or her wishes. Without a document expressing those wishes, family members and doctors are left to guess what a seriously ill person would prefer in terms of treatment. They may end up in painful disputes, which occasionally make it all the way to a courtroom.
How to Create a Living Will
The requirements for a living will vary by state so many people hire a lawyer to prepare their living will. Most people can create this simple document – along with the other typical estate planning documents – without the high legal fees by using a quality software application that accounts for their state’s laws. If you need to write or update a will or trust, you can take care of your living will at the same time.
Making Your Own Living Will
You can create a legally binding health care directive (living will) without paying an attorney by using reputable estate planning software. In addition to a living will, you can create a complete set of estate planning documents including your will, power of attorney, living trust, and more.
How Living Wills Work
Many states have forms for advance directives, allowing residents to state their wishes in as much or as little detail as they’d like. For example, it’s common to direct that “palliative care”—that is, care to decrease pain and suffering—always be administered, but that certain “extraordinary measures,” like cardiopulmonary resuscitation (CPR) not be used in certain circumstances. To be valid, a living will must meet state requirements regarding notarization or witnesses. A living will can be revoked at any time. The document can take effect as soon as it’s signed, or only when it’s determined that the person can no longer communicate his or her wishes about treatment. Even if it takes effect immediately, doctors will rely on personal communication, not a document, as long as possible.
Powers of Attorney for Healthcare
Living wills are often used with a document called a durable power of attorney (DPOA) for healthcare. In some states, in fact, the two documents are combined into one. A DPOA appoints someone to carry out the wishes about end-of-life treatment that are written down in a living will or medical directive. The person named is called the “agent,” “healthcare proxy,” or “attorney-in-fact” of the person who makes the DPOA.
Living Wills After Death
Any authority granted by a living will ends when the person who made the document dies, with the single exception that some living wills or powers of attorney give healthcare agents the power to make decisions about organ donation or autopsy. But because those decisions must be made very soon after death, the authority is not long-lasting. Again, this is in sharp contrast to a regular “last will and testament,” which has no effect when the will-maker is alive but becomes legally binding at death.
Writing a Last Will and Testament
Through your will, you declare what should happen to your estate after your death. Appoint an executor to represent you. It could be your financial adviser or lawyer, but many people choose a spouse or close relative. It’s common to have an executor who is also a beneficiary to the will. You can appoint a backup executor too. Your executor first pays probate, funeral, and burial costs and seeks out creditors to pay from your estate. After creditors receive their payments, your remaining assets go to the people or organizations you have named in the will. Be sure to leave your assets to people who can afford the associated payments and upkeep. Name guardians who are willing to take care of your minor children if necessary. Appoint someone who is willing to adopt your pet(s) and reserve funds for their care. Decide and explain what you’d like done with your online accounts and leave user names and passwords, so that others can take care of it. Check your state law to find out if your will needs witnesses to sign and watch you sign your will. Most states do. Put your signed will in a safe spot known to your family and executor. Be aware that significant life changes could create a need for changes to your will, through a codicil or the making of a new will, and other estate documents.
Creating a Living Will
If you face surgery or an incurable illness or simply wish to have a thorough estate plan, create a living will. Then, if you lose the ability to communicate your preferences, your doctor and those close to you know what end-of-life decisions to make on such issues as feeding and resuscitation. Through a living will you can also permit the donation of your organs or the autopsy, burial, or cremation of your body. You may wish to create a durable power of attorney for other treatment issues or payment instructions for healthcare. Be sure the person to whom you assign this power is mature, dependable, and religiously or ethically capable of carrying out your decisions. In the best-case scenario, you have time to discuss your living will with your doctor well in advance and gain a thorough understanding of the common medical options to anticipate and their possible impacts. Be sure your primary care doctor is on the same page with you and your decisions.
The basic difference between a will and a living will is the time when it is executed. A will takes legal effect upon death. A living will, on the other hand, gives instructions to your family and doctors about what medical treatment you do and don’t wish to have, should you become incapacitated. The insight of an experienced attorney can be valuable with regard to these two important documents and how each one suits your specific needs.
Attorney for a living will or advance directive
• Hire an attorney or do it yourself: An attorney who focuses on estate planning can create an advance directive for you and will know your state’s laws. You can also create one on your own, but you must make sure it meets your state’s requirements. Resources available to you include legal document creation software; a free living will form provided by your physician, local hospital, local senior center, or state’s medical association; and The National Hospice and Palliative Care Organization, which allows you to download a state-specific advance directive form.
• Research your state’s requirements: No matter how you create your advance directive, find out your state’s requirements. You must be at least 18 years old and of sound mind at the time you create your living will. Depending on your state, you may also need witnesses and/or notarization.
• Determine your end-of-life care: Decide what kind of medical treatments you want for yourself, such as artificial respiration, palliative care, or nourishment, when you get to the end of life or become completely incapacitated. Consider researching these health care matters and discuss them with your physician. Once you’ve made your decisions, write them down along with your rationale and feelings to help your loved ones understand your preferences, especially if it’s possible they might disagree.
• Reassess your living will as needed: Your advance directive isn’t set in stone. Change it as your perspective or situation changes due to age, decline, or a major life event, such as death, divorce, or a diagnosis.
Do I Need a Living Will?
A living will can be an important part of planning for the future. Understanding exactly what a living will is and what protections it offers can help you make informed decisions.
Provisions of a Living Will
The living will definition is a document that specifies your wishes about medical care. This can include withholding of lifesaving treatments, use of pain medication, withholding of nutrition and hydration, and removal of life support. A living will may also contain a provision naming a person to make medical decisions on your behalf if you are unable to (this is sometimes a separate document called a health care power of attorney or a health care proxy). Living wills sometimes contain directives about the patient’s goals when it comes to quality of life as well as directions about personal hygiene, modesty, and spiritual or religious instructions.
Will vs. Living Will
A will is a document that specifies how an individual’s property and assets should be distributed after their death. In contrast, a living will or advance healthcare directive contains instructions for medical treatments in the event of the person becoming incapacitated. Both will and living wills are binding legal documents but there is a big difference in how private they are — when the person dies and the will is executed, it goes through probate so wills become a matter of public record. But living wills stay private and are only seen by the medical staff in charge of caring for the person.
What’s the Difference Between a Will and a Living Will?
A will is sometimes also called the last will and testament is a legal document that specifies how a person’s estate should be handled after that person’s death. For example, whether their property and assets will be inherited by all children equally, or by certain children or relatives, or donated to charity. A will only gets executed after the person is deceased.
A living will, on the other hand, determines healthcare measures that will be taken or avoided when the person is alive but in a position where they are unable to take healthcare decisions for themselves or to communicate those decisions; for example, if they are in a coma.
How to Make a Will
The requirements for a living will vary between states, and so they should be prepared by a lawyer. In the will, an individual indicates which treatments they do or do not want applied in the event of a terminal illness or a permanent vegetative state. Before they become effective, they need certification from both your doctor and another doctor that you are suffering from a terminal illness or are permanently unconscious.
How to Make a Living Will
Living wills can only be created by individuals who are over 18 and considered of “sound mind.” The documents must be signed by you or your proxy, and may need a witness or a notary public present. Once it is prepared, a copy should be given to your doctor to go in your medical file. People may prefer to get legal advice to set up a will, but it is not always necessary. A valid will must be written in sound judgment; clearly state it is the individual’s will, name an executor, and be signed in front of two witnesses.
As living wills are medical documents, they remain private. Wills go through probate, and so become public documents.
The cost of setting up a living will varies from state to state, depending on whether it must be witnessed by a notary. Costs typically fall between $450-$800 to hire a lawyer to draft the living will. Wills also cost about $600 to $1,000 to be written up, but the probate process can be expensive, as many probate lawyers charge by the hour, and it can be an extensive process.
What happens if there is no living will?
If a person goes into a vegetative state without a living will, decisions about their treatment and life-prolonging care will be made by their spouse or by the doctors.
What happens if you die without a will?
If a person dies without a will, their property is distributed by the state. Assets are split between the surviving spouse and all children. If there is no living spouse or children, the property is distributed to grandchildren, parents, brothers and sisters, grandparents, or any relatives of your deceased spouse. If no such people are found, the property is assigned to the state of legal residence.
A living will should designate a health care agent, who will help organize your medical care if you are unable to do so. It should also say what treatments you might wish or not wish. For example, do you only want treatment if a cure is possible? Di you want palliative care to ease pain and discomfort while terminally ill? You should also specify whether you would want to resuscitated if your heart stops beating, if you want mechanical ventilation, and if and how long you would want nutritional and hydration assistance. You can also say if you wish to be an organ donor. These things should be written down, and may need to be signed by a notary. Copies must go to your doctor, your health care agent, and your family members.
The formats of wills vary from state to state, but they typically contain certain core information, and must be signed by two witnesses in your presence. A will must have your name and address and a statement revoking any previous wills. It must name an executor to deal with your estate, along with their names and addresses, and a residuary clause, which sets out how property not dealt with in the will should be distributed. It should be dated and signed.
Living Will Attorney
When you need legal help with a living will in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506