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Don’t confuse a living will with a last will and testament

by Legacy Plan
September 26, 2023

A last will and testament and a living will are pivotal legal documents in end-of-life decisions and estate planning, though they fulfill distinct roles. A common point of confusion among many is the similarity in their terminology and their shared emphasis on planning for the future.

This confusion largely stems from the use of the term "will" in the name of both documents. Without a solid grasp of the distinctions between the two documents, one could easily misunderstand their individual purposes. For instance, most people understand that a last will and testament addresses asset distribution after one's passing and is used to name a guardian for minor children, but they may not be aware that a living will articulates medical care preferences when an individual is approaching the end of life.

Contributing to the confusion is a general lack of public knowledge about these important documents. Many people remain unaware of the specific differences unless they've personally engaged in the estate planning process or received some form of education on the matter. The emotionally charged nature of end-of-life discussions also plays a role. Often, the sensitivity surrounding such topics discourages in-depth exploration, resulting in misconceptions. The widespread prevalence of misinformation, whether gleaned from a casual chat, a film scene or a simplistic news piece, doesn't help either.

The intricate legal language used in these documents also be a hurdle. Legal jargon, with its maze of terms and phrases, often becomes a daunting challenge for the average consumer, especially when these terms seem closely related. Also, individuals often draft or discuss both the last will and testament and the living will within the broader scope of estate planning, which can further muddle one's understanding of their distinct functions.

What is a living will?

A living will is a legal document that acts as a guide for health care providers and family members, providing clarity about the medical interventions an individual desires or rejects when faced with a life-threatening condition.

A living will enables individuals to express their treatment preferences ahead of time if they can’t communicate or make decisions about their medical care. It is intended to ensure that a person's wishes regarding end-of-life care are respected.

In a living will, you can outline specific treatments you would like to receive or refuse, such as resuscitation, life-support measures, pain medication or certain types of surgery. By doing so, it relieves loved ones from making difficult decisions on behalf of the patient during emotionally challenging times.

The concept of the living will has its roots in the broader context of estate planning. As individuals consider their legacy and contemplate their end-of-life wishes, they often seek to create an estate plan that encompasses not only financial matters but also medical care preferences.

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It is crucial to note that while similar in nature, a living will should not be confused with a health care power of attorney. While both documents serve to express an individual's preferences regarding medical treatment, they differ in terms of decision-making authority. A living will primarily focuses on specific treatments and interventions desired or refused by the person themselves, whereas a health care power of attorney designates another person (known as an agent or proxy) to make informed decisions on behalf of the patient when they are unable to do so themselves.

Understanding what exactly constitutes a living will is paramount for anyone interested in creating an effective advance directive as part of their estate planning journey. By clearly expressing treatment preferences through this legal document, individuals can ensure that their end-of-life wishes are respected and alleviate potential burdens placed on their families during emotionally challenging times.

Is a living will the same as an advance directive?

When discussing the topic of a living will, it is important to understand its relationship with an advance directive. While these terms are often used interchangeably, it is crucial to recognize that they are not exactly the same thing.

A living will is a specific type of advance directive that focuses on end-of-life treatment preferences. In other words, a living will outlines the medical treatments and interventions an individual wishes to receive or avoid in certain circumstances.

An advance directive, on the other hand, is a broader term that encompasses various legal documents designed to communicate an individual's health care decisions when they are no longer able to do so themselves. An advance directive typically includes not only a living will but also other components such as appointing power of attorney for health care decisions.

A living will can be considered a subset of an advance directive that deals specifically with end-of-life treatment preferences. Understanding the distinction between these terms is essential when engaging in estate planning and creating a comprehensive advance directive for medical care and and end-of-life care that aligns with your personal beliefs and values.

Having these documents in place can alleviate potential confusion or conflicts among family members who may have differing opinions regarding treatment options. Taking the time to create an advanced directive can truly be seen as leaving behind not just a legal document but also a legacy — an invaluable gift to those who care about you during difficult moments.

What is the history of a living will?

The history of the living will traces back to the 1970s when a shift in societal attitudes toward health care and end-of-life decisions began to take shape.

The Karen Ann Quinlan case was one of the first major legal battles that brought the right-to-die issue to national attention in the United States. Its profound impact on public opinion, medical ethics and legal precedents paved the way for the development and acceptance of living wills.

In 1975, Quinlan, a 21-year-old woman, collapsed after consuming a mix of tranquilizers and alcohol. She fell into a persistent vegetative state, with no signs of higher brain function. Her parents and physicians faced the agonizing decision of whether to continue her life support. After some time, her parents made the heart-wrenching decision to request the removal of her respirator, believing that it was in her best interest and that she would not want to live in such a condition.

The hospital refused the Quinlans' request to remove the respirator, citing potential legal repercussions and ethical concerns. This led to a legal dispute, with the Quinlans arguing before the New Jersey Supreme Court for the right to remove their daughter's life support.

In 1976, the court sided with the Quinlans, ruling that Karen's right to privacy outweighed the state's interest in preserving life, especially given her medical condition and prognosis. While they allowed the removal of the respirator, Karen continued to breathe on her own and lived for another nine years in a persistent vegetative state until her death in 1985.

The public nature of the Quinlan case prompted a national discussion on a deeply personal and complex ethical issue that many families face but was rarely addressed publicly. The case also highlighted the importance of respecting individual autonomy in medical decisions, even when the person can no longer communicate their wishes.

Realizing the complexities surrounding end-of-life decisions, especially when patients cannot voice their desires, there was a push for a legal instrument that could pre-emptively convey a person's wishes about life-sustaining treatments. This led to the development and subsequent acceptance of "living wills” to allow individuals to specify, in advance, the medical interventions they would want or not want if they became incapacitated.

In the wake of the Quinlan decision, many states began to enact legislation recognizing living wills and other advance directives, establishing their legal validity and ensuring that health care providers respect them. The case also impacted medical ethics, leading to the establishment or refinement of protocols in hospitals and medical facilities regarding end-of-life care and the removal of life support.

Indeed, the Quinlan case was a watershed moment in the history of medical ethics and patients' rights in the U.S. Its influence catalyzed the development and recognition of living wills, ensuring individuals have the power to direct their medical care even when they can no longer speak for themselves. In 1976, California became the first state to enact legislation specifically recognizing living wills as legally binding documents. The passage of this legislation marked a turning point in end-of-life decision-making and sparked nationwide discussions on autonomy and self-determination in health care.

In 1990, Congress passed the Patient Self-Determination Act (PSDA), which required health care facilities receiving Medicare or Medicaid funding to inform patients about their rights regarding advance directives including living wills. This federal law had a significant impact on promoting awareness and access to living wills throughout the United States.

Today, living wills are an essential component of comprehensive estate planning for individuals who wish to articulate their preferences regarding medical treatment at the end-of-life stage. The history of living wills exemplifies society's growing recognition that everyone should have control over their own care and be able to leave behind a legacy aligned with their values and treatment preferences.

What is the purpose of a living will?

The purpose of a living will is to clearly articulate an individual's treatment preferences in the event they become incapacitated and unable to make medical decisions for themselves.

By clearly outlining their treatment preferences, including whether they wish to receive life-sustaining measures such as artificial respiration, feeding tubes or resuscitation efforts, individuals can relieve their family members from having to make these difficult decisions during already emotionally challenging times. Beyond alleviating the burden on loved ones, a living will also promotes autonomy and personal agency.

Another purpose is to allow individuals to retain control over their own health care decisions even in situations where they may not be able to voice those decisions directly. This sense of empowerment allows individuals to establish their own values and beliefs regarding end-of-life care, ensuring that those choices align with their personal wishes rather than leaving them in the hands of others who may not fully understand or share their perspectives.

Additionally, a living will serves as not just a practical instrument but also as an opportunity for individuals to leave behind a meaningful legacy. By expressing their desires regarding end-of-life care in writing, individuals can convey their values and beliefs surrounding death and dying.

This can offer comfort both for themselves knowing that they have taken proactive steps toward preserving dignity and quality of life during challenging times, as well as for their loved ones who can rest assured that they are acting in accordance with the wishes expressed by the individual.

When does a living will go into effect?

One of the key aspects of a living will is determining when it goes into effect. Unlike some other advance directives, a living will specifically outlines the circumstances under which it becomes active.

Generally, a living will goes into effect when the person who created it is unable to make decisions regarding their health care themselves. This can happen due to various reasons such as being in an irreversible coma, suffering from severe dementia or being deemed mentally incapacitated by medical professionals.

It's important to note that the activation of a living will is not solely dependent on physical incapacitation but also takes into consideration mental competence. The document typically includes specific criteria or triggers that determine when the living will comes into effect.

These triggers may include conditions like terminal illness, permanent unconsciousness or reaching a certain stage of disease progression where treatment options become burdensome and futile. The purpose behind specifying these triggers is to ensure that treatment preferences are honored and respected during critical moments when individuals are no longer able to communicate their desires directly.

By clarifying these parameters in advance through a living will, individuals can have peace of mind knowing that their wishes regarding end-of-life care and medical interventions are known and followed. In essence, determining when a living will goes into effect is crucial for ensuring that one's legacy is upheld with dignity and respect.

What are common misconceptions about a living will?

One of the most common misconceptions about a living will is that it is only necessary for individuals who are elderly or terminally ill.

However, the truth is that a living will is relevant for individuals of all ages and health conditions because it ensures that their wishes regarding life-sustaining medical treatments are respected, regardless of their age or current health status. Another misconception surrounding living wills is that they are only useful in end-of-life situations. While it is true that a living will becomes particularly crucial toward the end of life, it can also guide medical decisions during other critical periods. For instance, if an individual becomes incapacitated due to an accident or illness and requires long-term care or life support interventions, the provisions stated in their living will can assist health care providers and family members in making difficult decisions regarding their treatment plan.

Unfortunately, some individuals believe that discussing a living will with their loved ones may bring bad luck or negativity into their lives. This superstition can prevent people from having important conversations about end-of-life wishes and can significantly impact decision-making processes during crucial moments.

It's essential to understand that discussing and documenting one's desires in advance ensures clarity and relieves family members from having to make challenging choices during times of emotional distress. Misconceptions surrounding living wills can hinder individuals from taking proactive steps toward safeguarding their treatment preferences and ensuring that their wishes are respected during critical periods when they may be unable to communicate them.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at legacyassuranceplan.com.

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Email - info@legacyassuranceplan.com
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