Making Your Wishes Known: A Comparison of a Living Will vs Advance Directive

A living will and an advance directive are legal documents allowing individuals to specify their end-of-life care preferences. However, there are some key differences between a living will vs advance directive. Continue reading for analysis.

Many aspects of American law champion the rights of an individual, especially personal freedoms – such as our base liberties safeguarded by the constitution. Many laws are upheld and challenged because they do or do not act in the spirit of the constitution, and America’s culture is one that, for all its faults, upholds the individual.

America’s culture champions choice to our last breath. And that is where a living will vs advance directive comes into play.

These legal documents allow us to determine our end-of-life care in a general sense, or down to a minute point, either through exclusionary clauses (i.e., not wishing to endure certain treatments) or to wish for specific care. A living will vs advance directive are alternatives to a patient’s wishes when a patient is incapacitated or rendered mentally incompetent due to injury or disease.

But how do these documents differ? And when would you need one or the other?

What is a Living Will?

A living will outline your medical preferences if you become incapacitated. It states, “I, the person who created this document, wish/do not wish to be treated in this way in the event of X.” The exact language used to create a living will differ from state to state and change with your circumstances.

If you are young and healthy, you may not have much cause to consider a living will unless you have personal convictions that differ from the medical norm. If you are single, for example, and have no surviving next of kin (such as parents or siblings), then incapacity will mean no one who knows you could legally advocate for any given course of treatment, even if they were your best friend in the world. Documents like a living will allow you to advocate without a proxy and specify or dissuade doctors from specific treatments.

Living wills are especially interesting for individuals with chronic or recurring health issues. If you are at greater risk of a specific complication, you can clarify how you would wish to be treated if the condition arose and you couldn’t otherwise comply or consent.

What is an Advance Directive?

An advance directive is more than a document; it is a collection of documents. A living will be part of a person’s advance directive, although it does not necessarily have to be. Generally speaking, advance directives include a living will and a medical proxy, also known as a medical power of attorney. This document names an individual as your medical representative if you become incapacitated.

Most people create a durable power of attorney for healthcare decision-making.

This is a power of attorney that is technically always active but continues to remain active even while you are incapacitated, as opposed to a springing power of attorney, which only becomes active when you are incapacitated, but with the added caveat that incapacity must be proven by a legal statement from a physician, which can delay a proxy’s ability to speak as to your care if the situation is urgent.

In addition to these central documents, an advance directive may include other instructions, such as a DNR (do not resuscitate order) and an organ donor card.

What is a Living Will vs. a Will?

Whereas a living will specifies what kind of medical procedures you allow or disallow, a will (or a last will and testament) is a legal document with instructions as to how your estate should be dissolved and distributed among your loved ones, including friends and family members.

Wills are essential – without them, or a similar form of estate planning, everything you own must be distributed equally among your kin according to intestate laws and succession rules. However, they are very different from a living will. You may want to arrange both for a comprehensive estate plan.

Can You Arrange Your Death?

One of the most controversial topics in bioethics and law is the topic of assisted dying or physician-facilitated suicide. Some patients wish to end their lives in the event of an incurable, intractable disease, especially one with a drawn-out or harrowing end, such as ALS or Alzheimer’s.

California is one of the very few states where, under strict circumstances, terminally ill adults have the right to request a drug that will end their life. There are multiple considerations before this option may be available to a patient, and not all patients who are terminally ill may opt for assisted death.

This change is recent, having only been introduced into California law in 2016. Furthermore, patients must actively lobby for the option to end their life rather than sign an advance directive.

Conclusion

Talking face-to-face with a legal professional to learn more about the legality and special considerations for advance directives and terminal illness would be best. The rules may differ in your state of residence, which is a complicated medical, ethical, and legal topic.

If you compare a living will vs advance directive, you'll find they have much in common. They are powerful documents to assert your wishes for medical care in your final days, whether it is to clarify that you do not want physicians to resort to extraordinary lifesaving measures or to exclude specific treatments based on religious or personal conviction, or to provide explicit consent for experimental or risky procedures if you cannot be asked for explicit consent at the time.

These documents are crucial for patients with terminal or chronic illnesses or conditions with a high risk of hospitalization and incapacity, especially mental incapacity. If you cannot advocate for your care, then an additional legal safeguard can speak for you, in addition to your spouse or proxy (through a medical power of attorney).

Exploring your options thoroughly is essential, whether to advocate for your care or a dignified end. Speak with an estate planning professional at Werner if you're located in Bakersfield, Encino, or Lancaster