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Living Wills: Ten Things You Should Know

Published: September 8, 2022

In contrast to a last will and testament, a living will does not transfer assets and property after death. Instead, it is a mechanism to communicate to your family and doctors how you want medical care conducted when you aren’t able. Your living will is an essential part of an estate plan to help you and your family in an emergency. No one will have to guess your choices, which may even prevent quarrels over treatment options to employ during a heightened emotional time.

If you are over 18, what would happen if an accident incapacitated you or an illness was so severe you could not make decisions on your behalf? Younger individuals rarely consider the idea of an unexpected accident or illness, and those who are older may have contemplated it but not formally communicated their wishes in a living will. When an emergency arises, this outline of medical care preferences will relay your decisions and allow your family and doctors to focus on following your living will. There are ten top facts about a living will that you should know.

1.     Rules for Living Wills Vary by State

In some states, this document is not even called a living will but rather a medical directive, advance healthcare directive, or healthcare proxy. Not only are naming conventions different, but the process and requirements for creating and executing this legal document may differ. If you spend significant time in more than one state, check to ensure your living will is valid in that state as well. Most states accept living wills from another state if the document is valid in the state of its creation due to reciprocity laws.

2.     Young People Need a Living Will Too

When you are young, you feel invincible, but even young adults can benefit from this legal document. It is not uncommon to fall victim to unexpected circumstances regarding health. In fact, young people tend to take more risks, making them prime candidates for sporting and traffic accidents. In a worst-case scenario, young people also benefit from describing their approved treatment options to avoid family difficulties when facing hard decisions in stressful times.

3.     A Living Will is a Binding Legal Document

Your living will must be properly prepared to be legally effective. Simply telling someone what you prefer or casually writing it on paper will not suffice. Comply with the laws of your state when outlining your preferences if you become permanently unconscious, terminally ill, or unable to communicate your choices.

4.     Definitions of Incapacitation are Doctor Determined

Your attending physician must determine whether your physical state is either permanently unconscious or terminally ill, and a second medical opinion must corroborate this determination. It is not permissible for just anyone to declare you unconscious or unfit to make decisions. Your living will do not go into effect until you are in these doctor-determined states of incapacity. Conversations with your doctor about your living will while healthy can ensure your needs are met and that they will comply with your legally documented medical decisions.

5.     You Can Change Your Living Will

If you change your mind, it is permissible to rescind your initial living will and create an entirely new one, canceling the first. Know that destroying the first copy will not suffice as it is a legal document that may have a connection to your other estate planning documents or other files. You must formally change or fully revoke your existing living will to ensure your new wishes will be followed. Changing your living will is your decision; no one may do so without your consent.

6.     How is a Living Will Different than an Advance Directive?

The National Institute on Aging considers an advance directive the general, all-encompassing term for written and oral instructions about your healthcare wishes. Other naming conventions are subsets of an advance directive. Subset naming conventions can differ by state, as do processes and requirements for a legally binding document.

7.     “Pulling the Plug” Directives in Your Living Will

A living will can keep you alive in extreme circumstances if that is your wish. Many consider the quality of life in these situations rather than a desperate need to be clinically alive. However, if you prefer to ride out a tough situation, your living will can identify preferences of pain control, comfort, and specific products and procedures that you want. There are some cases when younger people can experience a miraculous recovery from difficult injury or illness, which is why the ability to change a living will is crucial. What you may want at age 25 is likely to be very different from your preference at 75.

8.     Healthcare agent appointment

Naming a healthcare agent allows this person to make treatment decisions for you during incapacity. The individual needs to be able to communicate with your doctors to make reasonable decisions. They should be able to cope well during stressful emergencies. Before appointing someone, discuss if they are willing to take on the responsibility and communicate your wishes as outlined in your living will. Your agent is your choice and can be almost anyone with the following exceptions:

  • Your agent must be 18 or older and capable of competent decision-making
  • Your doctor or other medical team members cannot be your agent to avoid conflict of interest
  • Your agent may not be the individual who owns, manages, or works at the facility treating you

9.     Durable Healthcare Power of Attorney

This specialized representative may make medical decisions if you become incapacitated. A healthcare power of attorney is different than a living will, and it is wise to have both. Some states will combine the two into a single advance directive form. Look for your state’s naming convention for these documents here. Your estate planning attorney can further explain the nuanced legal technicalities of these terms.

10.  Will My Family and Doctors Comply with my Living Will?

Ultimately, your doctors are not required to adhere to your living will; however, most will do so. The surest way to know is to discuss with your doctor your wishes in advance of some adverse health event. You can talk it out if your doctor takes issue with your perspective or choices. Your doctor has medical knowledge and understands aspects of care you may not include in your living will. They may point out critical questions, clarify points, or spot something you overlooked. If there is no meeting of the minds, you may transfer your care to another doctor willing to honor your wishes.

A living will is essential to your estate plan. If your preferences change over time, you can rescind or alter your document as needed. Your estate planning attorney can help you understand a living will’s terminology and requirements for your state and can create this legal document reflecting your wishes. A living will helps your doctor and family know your preferences if you become incapacitated and bring you peace of mind knowing you have proactively planned for such an event. We hope you found this article helpful. If you have questions or would like to discuss your legal matters, please do not hesitate to contact our office at 215-364-1111 to schedule a consultation.

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Sometimes after a loved one passes away, the family learns of things they were unaware of while the loved one was living. This was the case for one of our clients, Sam, after his father Tom Jr. passed away. Sam was always under the impression that the home he had grown up in, and that his father had lived in until his death, was owned by Tom Jr. To say it came as a surprise that it was indeed Sam’s grandfather, Tom Sr., who was the actual owner of the home, is an understatement. 

Apparently, when Tom Sr. had passed away nearly 40 years ago, there was no proper estate plan established. Now, Sam would need to open his grandfather’s estate, resolve tax issues that were never addressed, and then go through the legal process to make the home a part of his father’s estate. At first, Sam believed that the entire process would be easy enough for him to handle on his own. However, after digging a little deeper, he quickly realized he would need the help of a knowledgeable and experienced attorney.

Sam reached out to Scott Bloom Law and we developed a game plan for moving forward. We began by probating Tom Jr.’s will and, after some time, we were able to settle the estates of both Tom Sr. and Tom Jr. While it was no fault of Sam, this is a great example of the importance of having an Estate Plan in place. No one wants to leave their families in precarious situations after they pass. The long-term purpose of setting up an Estate Plan today is to preserve as much of your wealth as possible for the intended beneficiaries and retaining a capable attorney can help ensure all of your wishes are met.

At Scott Bloom Law, we are a team of advocates who care, always fighting for what’s best for our clients and their families. With knowledge, experience, and compassion, we strive to find solutions that make the aging process as emotionally and financially easy as possible. Visit us at scottbloomlaw.com or call 215-364-1111, to talk to find out more.

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