Living Will in Estate Planning

A living will (not to be confused with a living trust) is a document that expresses your wishes regarding many health issues associated with life-threatening illness or injury. For instance, if you suffer an incapacitating injury and are unable to speak for yourself -- what would you want to happen? If you are in a permanent vegetative state, would you want to be put on life-support?

A living will describes under what circumstances you (as the "declarant") desire life prolonging treatments in the event you are in a permanent vegetative state or suffer from a terminal illness.

As long as you can understand and communicate what you want to happen, your living will will not become effective. Usually the living will requires two doctors to certify that you have a terminal illness or are permanently unconscious before it will be effective. That means that, for instance, if you have a heart attack (not a terminal illness and not permanently unconscious) -- attempts will be made to revive you even if your living will said you don't want life prolonging procedures. The bottom line is a living will is only used when it is determined by medical authorities that it is hopeless to anticipate your recovery.

Obviously, if you don't have a living will, your family will be placed in the terrible position of having to decide whether and when to "pull the plug." Do they wait until all family assets have been expended to prolong your life? Will there be family disagreement? Will they have to go to court to obtain a court order allowing them to make the decision?

So, having a living will in place before something like that happens is really a way to show your loved ones how much you love them -- by not putting them in that difficult position. Another advantage is that your wishes will be honored as long as the living will document is enforceable.

This is where we come to the issue of whether you should use a do-it-yourself program or fill-in-the blank kit to create your living will. Yes, it is certainly cheaper than hiring a lawyer to create the living will.

And, the truth is that a living will is one of the simpler legal documents one could prepare. Furthermore, there are several excellent "do it yourself" living will programs out there.

Here's a couple (the Rocket Lawyer link allows you to get a free living will if you cancel your "membership" within 7 days):

But, we recommend you at least consult with an experienced estate planning lawyer before preparing a living will so that you can be sure you don't have a unique situation that should be handled differently.

First of all, a do-it-yourself software program or fill-in-the blank kit might not meet all your goals and expectations. An experienced lawyer can interpret, and explain to you, the legal language contained in the living will and assist with ensuring all state required obligations have been included in the living will. This is an important step because every state has specific requirements that have to be met in order for a living will to be legal and enforceable.

After a living will (sometimes referred to as an "advanced medical directive") is created you should keep the document in a safe place with other important documents. Then you should notify at least one other family member along with your primary physician that you have created a living will and where it is located. A good practice to follow is to even give your primary physician a copy of the living will to be put in your medical file.

In the event that something changes in your life and your health-related wishes change, the living will document can be destroyed and another created. However, it is important to notify your family members and primary physician that your wishes have changed and that you have created an updated living will. You will also want to destroy the copy of the old living will given to your primary physician and provide him or her with the updated document for your medical file.

So, to summarize:

• A living will is an important document to ensure your final wishes are honored when and if you are unable to communicate those wishes to your physician and family members.
• Consult an experienced lawyer to assist with creating a living will to make certain all state requirements are met so your living will is enforceable.
• Be certain at least family members and preferably your primary physician knows about the living will and where to find it in case a health situation arises.

Even if you have a living will you still should also have a Health Care Power of Attorney because that will cover other health-related issues that are not necessarily life-threatening. A living will is a narrower document that is generally only effective in cases of imminent death whereas a Durable Power of Attorney for Health Care (or Health Care POA)will allow the person you appoint to make all health care decisions for you if necessary.

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