If you’re thinking about wills, you’ll know that a last will and testament offers peace of mind because your wishes will be carried out after you pass on. But before you pass away, a living will can outline what you want to happen if the time comes when you’re still alive but can’t communicate due to a serious medical situation.
Let’s look closer at a living will—whether it’s right for you and how it’s different from other types of wills, a medical power of attorney and an advance directive.
What Is a Living Will?
A living will is a legal document that tells others what your personal choices are about end-of-life medical treatment. It lays out the procedures or medications you want—or don’t want—to prolong your life if you can’t talk with the doctors yourself.
What kinds of circumstances are we talking about here? Loss of communication could happen because you’re under anesthesia for a scheduled surgery and had a complication, or maybe when you’re unconscious from an accident or other event.
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A living will is different from a medical power of attorney (which is when you choose someone you trust to make medical decisions on your behalf). More on the differences soon.
Living Will vs. Last Will and Testament
Do you already have your will (aka your last will and testament)? That’s great! But it’s different from a living will. So what’s the difference? Your last will explains exactly how you want your property and other assets to be handled after your death and includes family responsibilities, like naming legal guardians for your children.
But a living will is there to step in when you’re still alive but in an unconscious or terminal state, unable to voice your medical care wishes.
Think of it like this: Your last will tells people what you want to happen after you die. A living will tells them what you want to happen while you’re still living.
How Do Living Wills Work?
Because of how advance directives work (fancy talk for the set of legal docs you use to get your end-of-life wishes in order), a living will is only one of several sources of information that doctors might use in the course of deciding on your medical treatment—it will depend on your own ability to communicate, plus the possibility of other documents coming into play.
Each state has its own form for advance directives. We’ll talk more about what’s in advance directives below. For now, just know you’ll want to get ahold of your state’s specific advanced directive form to make a living will, and to help you prepare whichever kinds of wills or documents you and your family need.
Here are the basic facts on how a living will works:
- It has to meet all of your state’s specific requirements for notarization and witnesses to be valid.
- It can be revoked at any time—that’s helpful because you never know when new information or life changes might alter your plans, and you don’t want anything obsolete from an older living will to misrepresent your current wishes.
- The question of when a living will takes effect is your choice: You can make it effective immediately, or you can set it up so that it only kicks into effect once doctors have determined you can no longer communicate your preferences about treatment.
- Even if you opt to make it effective immediately, doctors will lean as long as possible on getting your personal preferences before consulting any document.
What Is an Advance Directive?
As we said above, advance directives can be made up of several documents. Some of the documents that could be included are:
- The living will itself
- A DNR (Do Not Resuscitate) order
- Directions about organ and tissue donation
- Specific instructions about a diagnosed illness
- Medical power of attorney (more below about how this doc works with a living will)
Living Will vs. Advance Directives
As you can see, an advance directive includes anywhere from one to five separate documents, with related instructions about different kinds of end-of-life decisions.
But just to make things confusing, a living will isn’t always called the same thing from state to state, and the term is sometimes used interchangeably with advance directive. So, you’ll want to make sure you know what your state calls it.
Whether your state’s term is one we already mentioned or a directive to physicians, advance health care directive, or even a declaration regarding life-prolonging procedures, they all have the same type of job—to let doctors know your wishes about end-of-life medical procedures if you can’t speak for yourself.
So what if your advance directive does not include a living will? A few different things might happen if you were to fall into a potential end-of-life situation without a living will in place. If you don’t have any form of advance directive in place at all, your family could be in a difficult place where they disagree with each other about how to handle your condition—the last thing anyone wants when facing a possible end-of-life scenario. Having one in place is better than nothing, but it also isn’t as flexible as a medical power of attorney (up next).
Living Will vs. Medical Power of Attorney
A medical power of attorney is different from a living will, because your living will wouldn’t appoint a medical representative for you—that’s what your medical POA is for.
A medical power of attorney is also known as a health care proxy—and this person acts as an agent to make medical decisions for you if you can’t talk to the doctors yourself. So instead of a piece of paper, you have a person you trust to speak on your behalf—acting in your best interests—while honoring your original wishes. So, you would need to have a conversation with them to make sure they know how you feel about important medical decisions.
What if you have a living will and a health care agent, and there’s a conflict? Let’s pretend a new medical treatment came up recently. Your health care agent learned about the procedure from your doctor and knows it’s something you would want to try based on your previous talks. But your living will didn’t specify this treatment as something you would be open to (because it’s a new thing you couldn’t have predicted would be developed when writing your living will).
In this situation, your health care agent would not be able to get the doctors to try the new treatment. Why? Because the living will overrides the health care agent (and doctors look to the living will first—as an official statement of your wishes).
When it matters most, a medical power of attorney is a lot more flexible than a living will. That’s why sticking to just having a medical power of attorney might make more sense for you. This person you trust will have a lot more power to do what’s best for you during crucial moments.
What Is Included in a Living Will?
Once you decide to create a living will, what should go in it? These questions might be tough to think about, but your loved ones will be glad you did:
- What would you want to happen if you can no longer breathe on your own?
- If you can no longer feed yourself, how do you feel about feeding tubes?
- What types of pain management drugs or procedures would you be comfortable with?
- Do you want a DNR (Do Not Resuscitate) or DNI (Do Not Intubate)?
- How do you feel about donating your body or organs after your death?
If you have a special medical condition, you’ll also want to include your choices for other procedures in the living will document too.
By thinking about these scenarios and setting out your wishes beforehand, you’re saving your family from having to make agonizing decisions about your medical treatment.
When Does a Living Will Go Into Effect?
A living will only works while these two things are true: You must be unable to communicate but still be alive. For instance, if you were confused or in a coma because of a head injury, your doctors would want to look at your living will for direction. But the moment you’re able to communicate on your own, your living will becomes unneeded and has no authority.
Each state handles living wills in its own way. You’ll want to make sure your living will is prepared according to your state’s specific guidelines.
How Do You Write a Living Will?
Assuming you think you want one, you may be wondering, Do I need a lawyer to get a living will in place? The short answer is no, but take our quick, free quiz to find out. But the requirements to make a living will vary by state, so be sure you’re fully aware of your state’s laws before taking on the writing yourself.
But a living will is a pretty simple document, so in most cases, this is something you can create on your own. Often you can do this online at the same time you’re making your last will and testament.
Do You Need a Living Will?
To keep things simple, having a medical power of attorney instead of a living will might make more sense for you. A medical power of attorney can decide what’s in your best interests based on what you would have wanted and still be flexible (unlike a piece of outdated paper). That way, you have the peace of mind knowing—in what could be an unpredictable situation—there is someone you trust making those medical calls on your behalf.
You can set up your medical power of attorney, with RamseyTrusted provider Mama Bear Legal Forms, while you’re creating your last will and testament in just a few minutes—leaving you to get back to enjoying your best life with the people you love.