Where There's a Living Will, There's a Way - Werner Law Firm

Where There’s a Living Will, There’s a Way

Estate plans are typically built to deal with matters of property and wealth after death, ensuring that ownership between generations is transferred as per the decedent’s wishes. But there is more to an estate plan than determining who gets the house and who gets the vinyl collection. Many elements of an estate plan are crucial for one’s end-of-life, particularly in terms of terminal care and hospice.

While we are usually loath to discuss our own potential death, ignoring the topic completely can lead to a long list of uncomfortable and unanswered questions down the road, especially once you find yourself completely unable to respond. We should all be so lucky as to pass away peacefully in our sleep after one last great family get-together, but no one can predict their own death.

Medical science has taught us that the longer we live, the more likely we are to suffer from cognitive disorders and chronic conditions that can greatly complicate care in the final stages of life. Preparing for the unthinkable as well as the inevitable is par for the course in an estate plan, and one of the more crucial elements of any estate plan is a living will or advance directive.

What Is a Living Will?

A living will is a legal document that describes one’s wishes and preferences in the event of terminal care and incapacity. It is also known as an advance directive or considered part of a series of documents that serve as advance directives, specifically “directing” one’s healthcare in advance.

Living wills are typically most useful in cases where a patient has fallen into a coma, is struggling with late stages of dementia, or is terminally ill and unable to respond due to intractable pain and other issues. Additionally, living wills:

      • Should be prepared long before it becomes truly relevant, and should be regularly updated (once every few years, or in the event of a life-changing diagnosis).
      • If you ever find yourself mentally or physically incapacitated and unable to respond to a doctor’s questions, a living will is meant to serve as a guide for both the doctor and your family to navigate the situation and do what is in your best interest while respecting your wishes.
      • Allow one to opt out of resuscitation and/or extraordinary measures, veto certain procedures that go against one’s morals, religious beliefs, or personal ethics, or clearly outline favor or disfavor towards a specific treatment course should you be aware of any chronic condition or likely cause for complication in the near future.

Living Will vs. Last Will and Testament

The term living will can be a little confusing, as it seems similar to a last will as well as a living trust. Where a living will is a document that pertains to one’s end-of-life care, a last will and testament is a document informing an executor and a probate court on one’s wishes regarding the distribution of an estate.

A living trust is a type of trust that goes into effect immediately, transferring assets and property funded into it out of the grantor’s (your) ownership and into the trust entity (until death or some other predetermined condition has been fulfilled), thereby bypassing probate.

Living wills, wills and living trusts are all very separate concepts in estate planning, and it is possible (and sometimes prudent) to have one of each.

Living Will vs. POLST

Where a living will is a legal document outlining the author’s wishes in an end-of-life scenario, a Physician Orders for Life-Sustaining Treatment (POLST) is a medical order, signed by both a physician and their patient, similarly outlining allowed and disallowed treatments under specific circumstances should those circumstances come to pass. It is not an advance directive.

While living wills are usually authored with a greater requirement for foresight, a POLST is written up specifically for emergency situations. Living wills carry much power, but in an emergency (when a living will might not be immediately available), a doctor is still authorized to do what they think is best as per their professional opinion.

However, a POLST overrides another doctor’s professional opinion and represents a more explicit warning against the use of unwanted or medically ineffective treatments in an emergency. A living will and a POLST are not mutually exclusive:

      • POLST forms are more useful for patients who are likely to struggle with an emergency situation in the near future, such as those who are in hospice or have been diagnosed with a terminal condition, while living wills may allow a person to legally declare their medical wishes should they be in a position where they cannot communicate with their physician.
      • Living wills are usually kept alongside other estate planning documents, while a POLST, once signed, is kept with you 24/7 – by your bedside, next to your chart, and wherever it can be best found in an emergency.

Durable Power of Attorney or a Living Will?

If you have signed a durable power of attorney to assign a specific person as your healthcare proxy should you be incapacitated, it’s worth knowing that even when electing one’s partner, healthcare proxies often are not equipped with the knowledge to make the right call, or do not accurately reflect their loved one’s wishes, especially when lacking documents or information to ascertain those wishes.

While it may be wise to assign an agent, particularly to care for your financial obligations in the interim between incapacity and death, a living will can also serve as a guide for a family member to better understand what you do and do not want.

Discussing Your End-of-Life Wishes and Care With Family

Perhaps the most important part of the creation of a living will is discussing your end-of-life wishes and care with family. The decision to create a living will doesn’t have to be a sign that you’re prematurely accepting death, or giving up on life. It is yet another step towards being prepared for what might come and wanting to give your family the best possible tools to deal with a potential future.

If you do plan on drafting a living will, or any other form of advance directive, be sure to work with a reputable estate planning professional. Even the simplest clerical errors can greatly change the meaning of a crucially important document.



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