Most people know what a Last Will and Testament is – and have hopefully executed one. Confusions exists, however, when it comes to understanding the purpose and need for a Living Will. A Will and a Living Will are not the same thing. In fact, while both should be included in a comprehensive estate plan, they perform distinct and different roles within your estate plan. To help clear up the confusion, the Los Angeles attorneys at Schomer Estate & Wealth Advisors explain what you need to know about Living Wills.
7 Important Things to Know about Living Wills
A Living Will is a type of advance directive that allows you to make important healthcare treatment decisions now in case you cannot make or express your wishes at some point in the future because of incapacity. Important things to know about Living Wills include:
- State Law Governs Living Wills: The terminology and legal requirements for living wills differ from state to state. Some states refer to this document as a medical directive, advance healthcare directive, or healthcare proxy. It is crucial to understand the specific process and criteria for creating and validating this document in each state where you spend considerable time. While many states honor living wills from other jurisdictions under reciprocity laws, ensuring validity across state lines is essential.
- If You Are an Adult, You Need a Living Will: A health crisis can occur at any age. Despite feeling invulnerable, young adults are susceptible to accidents and unforeseen medical emergencies just like their older counterparts. By outlining your treatment preferences in a Living Will, you can mitigate potential family conflicts should a crisis come to pass. This proactive approach ensures that your wishes are known and respected.
- A Living Will is a Binding Legal Document: Merely expressing preferences verbally or jotting them down informally is insufficient for a Living Will to be legally enforceable. Compliance with state laws is necessary when articulating preferences for scenarios like permanent unconsciousness or terminal illness, ensuring proper execution and validity of the document. Once you have created a legally enforceable Living Will, however, your healthcare providers, hospitals, and family members are legally obligated to follow your wishes as expressed in the document.
- The Definition of “Incapacity” Can Vary: State law dictates how “incapacity” is defined and/or what threshold must be met before the terms of a Living Will kick in. State law also determines who decides if that threshold has been met and whether a second opinion is required.
- A Living Will Allows You to Decide Whether to “Pull the Plug:” Most people have strong feelings about being kept alive by the use of breathing machines, artificial nutrition, and other life-sustaining measures. If you are among them, a Living Will ensures that your wishes will be honored. A Living Will can also let you express your wishes regarding things such as pain control and medical treatment aimed at making you comfortable when death is eminent.
- Making Changes to a Living Will Is Relatively Simple: You retain the right to modify or revoke your Living Will at any time if your wishes change. Merely destroying the original document, however, is insufficient to revoke a Living Will. You should follow formal procedures to ensure that revisions to an existing Living Will are legally recognized and honored.
- You Can Also Name a Healthcare Agent in a Companion Document: The companion document to a Living Will is known by various names, including a “Healthcare Power of Attorney.” It is in this document that you are able to appoint an Agent to make healthcare decisions for you if you are unable to make or communicate them yourself.
Do You Have Additional Questions about Living Wills?
For more information, please join us for an upcoming FREE seminar. If you have questions or concerns Living Wills, contact the experienced Los Angeles estate planning attorneys at Schomer Estate & Wealth Advisors by calling (310) 337-7696 to schedule an appointment.
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