When it comes to estate planning, you’ve most likely heard people mention a couple of different types of wills. The most common is a “last will and testament,” which is also known simply as a “will.” But you may have also heard people talk about a “living will.”
Both terms describe important legal documents used in estate planning, but their purpose and the way they work is very different. Here we discuss some of the most critical things you should know about living wills, and explain why having one is an essential part of every adult’s estate plan and how to get yours created or updated.
1. What Is A Living Will?
A living will is a legal document that tells your loved ones and doctors how you would want decisions related to your medical care handled in the event you become incapacitated and are unable to make such decisions yourself, particularly at the end of life. A living will outlines the procedures, medications, and treatments you would want—or would not want—to prolong your life if you become unable to discuss such matters with doctors yourself. For example, within the terms of your living will, you can spell out certain decisions, such as if and when you would want life support removed should you ever require it, and whether you would want hydration and nutrition supplied to prolong your life.
Beyond instructions about your medical care, a living will can even describe what kind of food you want and who can visit you in the hospital.
2. Living Will vs Last Will & Testament A last will and testament is a tool used to ensure your assets are divided upon your death in the way you choose, and is the primary tool most people think about when they think about estate planning. Note that your will only deals with your assets and guardianship of minor children, and it only operates upon your death. In contrast, a living will is about you, not your assets, and operates in the event of your incapacity, not your death.
In other words, a last will tells others what you want to happen to your wealth and property after you die, while a living will tells others how you want your medical treatment managed while you are still alive.
3. What Is An Advance Directive and What Are the Differences From a Living Will?
Georgia has adopted a standardized advance directive by statute, which is what most people use as it is what doctors in Georgia are most familiar with. The Georgia Advance Directive for Healthcare includes a living will (with instructions for how you want your medical care handled if you become incapacitated), and a medical power of attorney (naming the people you want making decisions for you, and giving them authority to talk with your medical team). Since the Georgia legislature combined the living will and medical power of attorney, most people use the Georgia Advance Directive for Healthcare rather than having separate documents.
4. Living Will vs Medical Power of Attorney A medical power of attorney allows you to name a person, known as your “agent,” to make healthcare decisions for you if you’re incapacitated and unable to make those decisions yourself. As mentioned above, it is part of the Georgia Advance Directive for Healthcare. The medical power of attorney names who can make healthcare decisions for you when you cannot make your own decisions and the living will explains what medical decisions you want made.
If you are considering using an online document, it is important to note, not all living will form documents or templates include a medical power of attorney or the proper legal authorizations to give the person you want to make decisions for you the legal authority to access your medical records. Therefore, if you are completing an online living will or advance healthcare directive, or supporting a family member to do so, make absolutely sure that the document legally names a decision-maker with at least two backup decision-makers, gives that person legal authority under HIPAA to access your medical records, AND provides specific and detailed instructions regarding how your medical care should be provided in the event of incapacity.
Additionally, although the Georgia Advance Directive for Healthcare is the most common form in Georgia, it is an incredibly confusing form. Make sure you understand what the questions are asking as your wishes will only be followed if you accurately fill out the document.
5. Why Is A Living Will So Important?
A living will is a vital part of every adult's estate plan, as it can ensure your medical treatment is handled exactly the way you want in the event you become unable to communicate your needs and wishes yourself. Additionally, a living will can prevent your family from undergoing needless stress and conflict during an already trying time. Without a living will, your family will have to guess what treatments you might want, and your loved ones are likely to experience stress and guilt over the decisions they make on your behalf. In the worst cases, your family members could even end up battling one another in court over how your medical care should be managed.
6. Even Young People Need A Living Will
Although you may think that a living will is something that only the elderly or older people need, the fact is, you can experience a serious accident or illness at any age, which would leave you incapacitated and unable to communicate your wishes for medical care. For this reason, all adults over age 18 should have both a living will and a medical power of attorney in place.
One tragic example of just how horrific things can become when a young person becomes incapacitated without a living will in place occurred in Florida to a woman named Terry Schiavo. Terry suffered a heart attack at the age of 26 due to an electrolyte imbalance and then was kept alive on life support for another 15 years before being removed from life support and being allowed to pass away "naturally".
Terry’s case made it all the way to the United Supreme Court after her husband fought her parents seeking the authority to remove her from life support based on conversations the two of them had where she indicated she would not want to live as a vegetable dependent on medical interventions. Since she did not have a living will or a medical power of attorney, years of litigation and tens of thousands of dollars of legal fees had to be spent in order to give her husband the authority to fulfill her wishes.
7. Decisions and Scenarios Addressed In A Living Will
A few of the most common types of decisions, treatments, and scenarios typically addressed in a living will include the following:
Tube feeding: You can include instructions about if and for how long you would want tube feeding used to supply you with nutrients and fluids needed to prolong your life.
Resuscitation (CPR): You can include instructions detailing whether you want CPR used to restart your heart in the event it stops while you have a terminal illness or are in a permanent vegetative state.
Intubation & mechanical ventilation: You can state if and for how long you would want to be intubated and placed on a mechanical ventilator if you could not breathe on your own. This has become particularly important over the past few years as patients often require intubation, which involves putting you into a medically induced coma and inserting a tube into your windpipe, allowing oxygen to be pumped directly to your lungs through the use of a ventilator. That being said, the Georgia Advance Directive for Healthcare generally limits the living will to terminal illness or permanent vegetative state so it is important to include the proper limits and specific instructions in your documents.
Organ/Tissue Donation: You can specify in your living will if you want to donate your organs and/or tissues for transplant following your death. Note that you will likely receive life-sustaining measures until any procedures are completed to remove your organs and tissues.
Any Other Instructions: You can detail any additional treatments you want to ensure you get (or do not get). For example, do you have religious beliefs which would prevent you from accepting transplants or blood transfusions? Are you only ok with donating your organs to specific individuals? All of these things can be handled in your living will limiting the authority of your agent.
8. Should You Do It Yourself With an Online Living Will? While you’ll find a wide selection of generic living wills, medical power of attorney, and other advance directive documents online, you may not want to trust these do-it-yourself solutions to adequately address such critical decisions. When it comes to your medical treatment and end-of-life care, you have unique needs and wishes that just can’t be anticipated by fill-in-the-blank documents. To ensure your directives are specifically tailored to suit your unique situation and that you actually get it done instead of just knowing you need to get it handled and never do it, work with experienced planning professionals like us at Campen Estate Planning to create—or at the very least, review—your living will, medical power of attorney, and other documents.
We don’t just ensure your documents get created correctly; we have processes to keep you moving forward beyond procrastination and actually get them signed (which is one of the biggest risks to your family), as good intentions alone won’t keep your family out of court and out of conflict should you become incapacitated without a signed (and updated) plan in place.
9. Communication is Vital Even if you have the most well-thought-out and professionally prepared living will around, it won’t be worth the paper it's printed on if nobody knows about it. Your medical directives go into effect the second you sign them, so you should immediately deliver copies to your agent, your alternate agents, your primary care physician, and any other medical specialists you’re seeing. However, do not be alarmed because your agent does not have any discretion to act on your behalf unless you are unable to communicate your own wishes to your medical team. I always tell clients: if you are breathing, talking, squeezing your doctor’s fingers, blinking or writing, you’re in the driver’s seat. It is only when you cannot communicate with your medical team that your agent has the authority to act on your behalf. And don’t forget to give those folks new versions whenever you update the documents and have them tear up the old documents. This is a standard part of our practice when serving our clients, so when you work with us to create your legal documents, we’ll ensure that everyone who needs to have your documents always has the latest version.
10. Don’t Wait Until It’s Too Late
Your living will and medical power of attorney must be created well before you become incapacitated and unable to make your own decisions. You must be able to clearly express your wishes and consent in order for these planning documents to be valid, as even slight levels of dementia or confusion could get them thrown out of court. Unfortunately if it becomes to late, the only option your loved ones will be left with is to seek Guardianship over you in order to have the authority to make the decisions necessary to care for you.
An unforeseen illness or injury could strike at any time, at any age, so don’t wait—contact us right away to get these vital documents put in place.
A Comprehensive Plan For Incapacity A living will and medical power of attorney are just two of the legal documents you need as part of your overall plan for incapacity. You will also likely need other estate planning tools, such as a durable financial power of attorney and a last will and testament (or a revocable living trust), in order to have a truly comprehensive incapacity plan. We see estate planning as so much more than planning for death. It should be about your life and the legacy you are creating through the choices you make today.
If you’ve yet to create your incapacity plan, schedule a Family Wealth Planning Session™ right away, so we can advise you about the proper planning vehicles to put in place. If you already have an incapacity plan—even one created by another lawyer—we can review it to make sure it’s been properly set up, maintained, and updated. Contact us today to get started.