When most of us think about estate planning, we often find some of the terms a bit confusing. We know what a will us, more or less, and we may have some idea what a health care power of attorney is for, but what about a living will? Is that something we need, and if so, how do we go about drafting one?
To help answer those questions, we return to this 2021 USNews article, written by reporter Emma Kerr. She goes through the basic questions about what a living will is, what it does, and why most of us should have one. It’s an important topic and one that bears revisiting.
A Living Will is a Critical Element in Planning for Your Future
In her article, Kerr says that a living will is a special document, different from a will, and designed to work in tandem with other documents you prepare in advance. “Creating a living will – in conjunction with a health care proxy and other estate planning documents – can be critical for protecting loved ones and ensuring medical wishes are followed,” she writes. Moreover, she stresses that these basic estate planning documents aren’t just for seniors or the terminally ill: they’re helpful for everybody.
Kerr’s goal is to prepare readers ahead of time so that you know what you’re asking for as you work with doctors and attorneys. Her USNews article goes over the basics: what a living will is, what it does, and who should have one. She also addresses the process of preparing a living will, and provides a rough estimate of the cost. We found the article helpful as a kind of “living will primer,” but we encourage you to sit down with an elder law attorney to make certain your living will accurately reflects your wishes.
A Living Will Describes the Kind of Medical Treatment You Want – and Don’t Want
Kerr’s article defines this important document this way: “A living will is a written document that communicates an individual’s desire for medical treatment in the event they are unable to express those wishes themselves.” In most cases the living will does not replace the health care proxy (or power of attorney) but works in conjunction with it.
New York attorney Thomas Fazio explained a living will more fully. “It frequently provides that, if there is a medical determination that you will not recover, you do not wish to be kept alive by artificial means,” Fazio told USNews, “but you do want palliative care such as pain medication.” Conversely, your living will may stipulate just the opposite, telling medical professionals to do everything in their power to keep you alive. Often an individual’s wishes fall between these all-or-nothing extremes.
What’s the Difference Between a Will, a Living Will and a Living Trust?
While the terms may sound similar, a will and a living will are quite different. The living will is designed to communicate your medical and health wishes. By contrast, a will (and a living trust) are focused on your assets. One document describes how you want to be treated before your death; the other defines who will get your stuff when you die, and who will be in charge of your estate.
One attorney told USNews that most people need at least a will, a living will, and a financial power of attorney. “For individuals who own a home, real property, or have minor children, a living trust is generally also recommended to avoid having to deal with probate court to inherit assets and to generally make things as easy as possible for your beneficiaries,” he says.
If you decide that a living will should be part of your estate planning documents, remember that it needs to be created in conjunction with other documents so that, together, the documents that will guide your family and your medical team in an extreme medical situation will all be in harmony. On that future day when you can’t communicate your wishes clearly, your estate planning materials have to make those wishes crystal clear.
Putting a Living Will Together
While there are plenty of do-it-yourself estate planning websites out there, USNews urges that you consult a professional before creating a living will. We agree. “Poor estate planning can lead to more negative outcomes than positive,” Kerr writes, “so individuals should start with a consultation with an attorney to determine whether a living will accomplishes their goals and [also] speak with a doctor to learn more.”
The question of cost typically comes up whenever we consider estate planning. These costs can vary widely depending on what you need and who you consult. One attorney interviewed for the USNews article said his firm charges between $2,000 and $3,000 for “a complete estate plan including multiple documents.” Other attorneys may be able to complete a simple living will for a few hundred dollars. Online services are less expensive, but the old saying it true: you get what you pay for. Scrimping on professional quality now can mean big headaches later.
What Should Be Included in a Living Will?
“A living will can be generic or detailed,” Kerr writes. “It should cover treatments for which an individual has specific desires.” For example, some people want to refuse the use of mechanical respirators at the end of life. Others opt to restrict feeding and hydration. Many use their living will to stipulate their desire to donate their body for research or their organs for transplant.
“Sometimes living wills will be more detailed if there are certain religious beliefs or strong beliefs you want to comply with,” one attorney explained. The idea is simply to communicate your medical wishes in an emergency situation even when you can’t. That’s the key reason why your loved ones need to know in advance about your desires, so that they’re not second-guessing your preferences in a medical crisis.
A Health Care Power of Attorney is a Powerful and Essential Tool
Often created in concert with a living will, a health care power of attorney (or health care proxy) is a vitally important planning tool. “The proxy is a designated person to express your wishes to the doctors involved in your care and make medical decisions for you,” USNews explains, “and many individuals will name a health care proxy when they create their living will.”
This article from Investopedia offers a basic definition. “A health care power of attorney (HCPA) is a legal document that empowers a specific individual to speak with others and make decisions on your behalf concerning your medical condition, treatment, and care.” The article adds that the person you choose may very well be charged with making life-and-death decisions on your behalf, so you need someone you can trust.
Investopedia adds this caution. “Although a health care power of attorney is easy to put in place, states have different rules and forms; so you’ll need to consult those of the state in which you live.”
When you’ve completed your living will, says USNews then what? Make sure key people know what it says. “Once the living will is signed and executed, copies should be distributed to the relevant people,” Kerr writes. “This might include your doctor’s office, your health care proxy and your durable power of attorney. Keep the original stored safely at home.”
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(originally reported at https://money.usnews.com)