What’s a living will? What’s the difference between a Will and living will? Do I need a living will? When does it go into effect? Does a living will avoid probate? Let’s answer these great questions.
Every adult needs 4 basic estate planning documents: (1) a will (and/or trust), (2) a living will, (3) a durable financial power of attorney, and (4) a durable medical power of attorney.
- A Will goes into effect at your death, appoints an executor to handle your estate, and specifies who receives your property. A Will has some custom provisions for your unique family situation and desires, with standard provisions defining your executor’s powers and giving them broad latitude to handle your last affairs under state law.
- A living will isn’t better than a regular will (or an upgrade to a will) – they’re both vital, but they do different things, like a hammer and a screwdriver.
- A living will only applies during your life, when you’re incapacitated or terminally ill. Your living will tells doctors and family members when and how you want to be kept alive or have life sustaining/prolonging medical procedures done for you if you become incapacitated, in a coma, or are terminally ill.
- Living wills avoid situations like the Terry Schiavo or Nancy Cruzan tragedies. (In those cases, the families had a tough time since neither woman had specified what treatment they wanted in writing. Without instructions, it got left up to the courts and/or family members to make the “pull the plug” or life support choices.) The family still has to make the decisions, but with a living will, they have guidance from you about how you want to be treated, what should/shouldn’t be done. Living wills can include do not resuscitate (DNR) orders, comfort care if you are terminally ill, no life support, hospice, and die at home instead of a hospital preferences, or can be customized to reflect your unique wishes and moral convictions about end of life issues.
- A Will may need to be probated, but a living will avoids probate, since it only applies during your life.
What’s the difference between living wills and medical powers of attorney? Medical powers of attorney are for more routine or common health care decisions or treatments than the living will, which only applies in extraordinary situations. A medical durable power of attorney authorizes a person to act on your behalf to make medical decisions for you while you are alive, but unable to act, such as authorizing surgery or a medical procedure if you are unconscious or in a car wreck. The person is called your attorney in fact and is your agent. We customize powers to parallel the desires expressed in your living will. A medical power of attorney includes a HIPAA privacy release and also allows the person to talk with your doctor, pick up medicine, etc.
My law firm, Johnson Law KC LLC, can help you make a Will and get your estate plan done quickly and affordably. Call (913.707.9220) or email us (email@example.com) to schedule a free, convenient consultation.
(c) 2015, Stephen M. Johnson, Esq.
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