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Imagine your heart suddenly stops one day. Your brain doesn’t have oxygen for a while, but then doctors manage to bring your heartbeat back. Your brain doesn’t wake up, though.
Your spouse wants to disconnect life support while your parents want to keep you alive by any means possible. What happens to you?
This wasn’t an imaginary scenario for one family. In 1990, Terri Schiavo went into a coma and, since she didn’t have a living will and her loved ones couldn’t agree on what to do, the courts ended up deciding her fate.1
So, what is a living will?
What Is a Living Will?
If you’re thinking about wills, you know a last will and testament offers peace of mind because its job is to make sure your wishes are carried out after you pass on. But before you pass away, a living will can outline what you want to happen if you can’t communicate your wishes due to a serious medical situation.
Let’s look closer at living wills—whether getting one is right for you and how they’re different from other types of wills, medical powers of attorney, and advance directives.
Living Will Definition
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.
So, what kinds of circumstances are we talking about here? Well, there are lots of situations where you wouldn’t be able to speak for yourself. You could be under anesthesia for a scheduled surgery and have complications. Or maybe you’re unconscious from an accident or other event. Or perhaps you’re aging and in late stages of dementia.
Whatever the situation is, it’s important to have some way to communicate your wishes in case things go south.
The Purpose of a Living Will
While we all hope and pray the unthinkable never happens, being prepared for the worst could save you and your family from a lot of emotional, financial and even physical pain.
It’s not fun to think about, but unless you belong to a very strange family and spend holidays talking about what you’d want done if you were incapacitated, your family members could easily have different ideas about what should be done. And if you’re single without a close relative, important end-of-life decisions could be left up to a parent or other relative who doesn’t know you very well.
A living will speaks for you if you can’t and protects you from someone else calling the shots for you while you’re powerless.
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 doctors might use to decide your medical treatment—it all depends on your own ability to communicate, plus the possibility of other documents coming into play.
Here are the basic facts on how a living will works:
- To be valid, it has to meet all of your state’s requirements for notarization and witnesses.
- 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 an older living will to have the wrong info about your current wishes.
- A living will takes effect once doctors have determined you can no longer communicate your preferences about treatment.
- Even if you have a living will, doctors will lean as long as possible on getting your personal preferences before consulting any document.
Living Will vs. Will
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 between a living will and a will? 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.
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A living will, on the other hand, is there to step in when you’re still alive but unable to voice your medical care wishes—for example, if you’re unconscious.
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.
Living Will vs. Living Trust
Living wills and living trusts sound similar but they’re really not at all. A living will has to do with medical decisions, while a living trust is a plan for how to distribute your estate after you die. The living part means your estate goes into the trust while you’re still alive. One of the biggest attractions of a living trust is that it gets around probate and gives you more privacy around the handling of your estate.
So, if you have a living trust and think your end-of-life scenarios are sorted, think again!
Living Will vs. Advance Directive
Think of an advance directive as a file of all your instructions about what you want done medically if you’re unable to communicate—including what happens with your body after you die (like organ donation).
Sounds similar to a living will, right? But the difference between a living will and an advance directive is that an advance directive can include more than just a living will while a living will is just that.
What Is an Advance Directive?
Like we just said, an advance directive can be made up of several documents that all help make your wishes clear to doctors and family. Here are some of the things that can be included:
- A living will (kind of obvious, we know)
- A do not resuscitate (DNR) 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)
As you can see, there’s some overlap between advance directives and living wills, but advance directives just give doctors and your family more information about your wishes.
Right about now we should clarify something: Some states like to be special and come up with their own name for a living will (like directive to physicians, advance health care directive, or declaration regarding life-prolonging procedures). Sometimes they even get lazy and use living will and advance directive interchangeably. All that to say, make sure you know what your state calls it.
No matter what your state calls them, these documents 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 doesn’t include a living will? A few different things can happen if you fall into a potential end-of-life situation without a living will in place. If you have a medical power of attorney (POA), the person you appointed will talk to doctors about what they believe you’d want done. We’ll go into medical POAs more later, but usually they’re a better option than a living will because they have more flexibility.
But what happens if you don’t have a living will or medical POA in your advance directive (or you don’t have an advance directive at all)? Well, you’ll be at the mercy of your family—or the courts if your family can’t agree on how to handle your condition. And that’s the last thing anyone wants when facing a possible end-of-life scenario.
Living Will vs. Medical Power of Attorney
A medical power of attorney is different from a living will because your living will doesn’t appoint a medical representative for you—that’s what your medical POA is for.
A medical POA is a document used to name an agent (aka health care proxy) to make medical decisions for you if you can’t talk to doctors yourself. So instead of a piece of paper, you have a person who’ll speak on your behalf and carry out your wishes if you can’t. This means you’d need to have a conversation with them to make sure they know how you feel about important medical decisions.
Because living wills only deal with potential end-of-life scenarios, it’s a good idea to have a health care proxy to handle situations where you’re not near death but still can’t communicate (think complications with surgeries). Actually, a medical POA agent can handle those end-of-life scenarios too if you don’t want a living will. And there are some good reasons why you might not.
What if you have a living will and a health care proxy 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’d want to try based on your previous talks. But your living will doesn’t specify this treatment as something you’d be open to (because you didn’t know about it when you were writing your living will).
In this situation, your health care agent wouldn’t 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 POA might make more sense for you. Your trusted agent will have a lot more power to do what’s best for you during crucial moments.
Hold on . . . that was a lot of information. Here’s the main thing to remember: If you have a living will, you should definitely have a medical POA too. But if you have a medical POA, you may not need a living will.
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What Is Included in a Living Will?
If 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.
If you can no longer feed yourself, how do you feel about feeding tubes?
Some people don’t want feeding tubes for various reasons—including the pain involved in inserting and removing them. If you don’t want to be fed through a tube, make sure you put that in your living will.
What types of pain management drugs or procedures would you be comfortable with?
One of the big reasons people choose not to be put on powerful painkillers is their addictive nature. These people might already struggle with an addiction and don’t want it rekindled or may want to avoid the chance of developing one.
If you don’t want to be given opioids or any other kind of painkillers, you’ll want to include that in your living will.
Do you want a do not resuscitate (DNR) order or do not intubate (DNI) order?
A scenario where this would be important might involve a person who has a terminal illness. If their heart stops while they’re under care and they have a DNR, doctors won’t use CPR, a defibrillator or any other form of resuscitation to bring them back.
Similarly, if a person can’t breathe normally and has a DNI, doctors won’t put a breathing tube into their trachea. If you want to be kept alive at all costs, you don’t need to worry about this. But if you prefer to not be kept in this world artificially, you should specify with a DNI that you don’t want to be put on a ventilator.
How do you feel about donating your body or organs after your death?
Many people choose to donate their bodies to science. But scientists (at least the ethical ones) don’t just go grab any cadaver from their local mortuary whenever they need to look at a heart or brain. If you want to further science, state that in your living will and, who knows, you may just be part of the cure for Alzheimer’s!
Others like to know their organs could save another person’s life and choose to be an organ donor. Sometimes this info is on your driver’s license, but it should also go in your living will.
If you have a special medical condition, you’ll want to include any info about medical choices relevant to that condition in your living will too. For example, if you’re pregnant (especially if you’re a single mother), it’s a good idea to put down what you want done in case of complications: Do you want doctors to prioritize the baby’s life or yours? Do you want your DNR and DNI to be cancelled if the baby might make it?
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’re unable to communicate, but you’re still alive. For example, if you were in a coma because of a head injury, your doctors would want to look at your living will for direction. But the moment you can 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.
Can a Living Will Be Broken?
Only you or a court can break your living will. If your health care proxy or family want to break your living will (for good or bad reasons), they won’t be able to.
But you can always update your own living will. If new treatments are found that you’d like or you just change your mind about what you want done, you can revoke your living will and make a new one. It’s a good idea to keep your living will as up to date as possible. Just talking to your health care proxy isn’t enough if you also have a living will.
And keep in mind, even though only you can change your living will, a court could declare your living will invalid for a few reasons—like if you didn’t have the proper witnesses or you weren’t of sound mind when you wrote it.
Remember how some states call living wills different names and handle them in unique ways? Yeah, states also differ on what makes living wills valid. Some only need living wills to be witnessed by one person, others two—and in some states, living wills aren’t valid at all if you’re pregnant.
How to Make a Living Will
So if you want a living will, 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 if you’re an exception. Remember, 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.
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.
Whether you write your living will or have a lawyer do it for you, you’ll want to go through the following steps before putting one together. These will help you figure out how to write a living will on your own.
Talk to your doctor.
Have a conversation with your doctor about the options available in end-of-life situations. Go over the details of what’s involved with each to determine what you want. If you have any special conditions, discuss the options around those too.
Determine the care you want.
Take some time to sit with what you’ve learned and really think through what each of the options mean for you before deciding.
Talk to your family and close friends.
Make sure you include your spouse and loved ones in your decision. Let them know what you want, and maybe even get their thoughts and feedback.
Decide who’ll make decisions for you.
For your medical POA, choose someone you trust who has a good handle on what your attitude toward certain scenarios is, and be sure you talk to them about it. Confirm they’re on board and don’t have any personal, moral or religious objections to your wishes.
And keep in mind, this person doesn’t have to be a relative. You can choose anyone—as long as they know you well and you’re comfortable with them making those decisions.
File copies of your living will.
Make sure you follow your state’s rules for getting your living will witnessed and notarized. Keep a physical (hard copy) of it somewhere safe. We recommend putting all your important documents in a legacy drawer—either a physical location like your sock drawer (not the sock drawer!) or a digital one like a file on your computer or online document storage.
Do You Need a Living Will?
There’s no one-size-fits-all answer to whether you need a living will. It all depends on your situation.
Generally, we only recommend getting a living will if you need one. Go for a medical power of attorney by itself if you can because it’s a more flexible solution to what’s often an unpredictable situation.
A medical POA agent can decide what’s in your best interests based on what you’d have wanted and still be flexible (unlike a piece of outdated paper). That way, you have peace of mind knowing someone you trust is making those medical calls on your behalf.
Do children need living wills?
If an adult needs a living will, does that mean a child needs one too? The answer: not really. A child will have a parent or legal guardian who can make all sticky medical calls for them until they’re of age.
Once a child reaches age 18, it’s a good idea to set up some sort of advance directive—either a health care proxy through a medical POA or a living will (or both). Remember, life-altering events like a car crash can happen at any age. In the real-life example we used above, Terri Schiavo was 26 when she fell into a coma.
Alterations to Living Wills
As we’ve mentioned before, medical advancements happen all the time, and what was true when you wrote your living will may not hold true a year (or 12) later when it goes into effect. So, you definitely can and should make alterations to your living will whenever a new treatment becomes available or some other important development happens.
Just make sure you follow your state’s rules about how to officially revoke your previous living will, and make sure you get your revised will filed too.
Moving to Another State
If you move to another state, you’ll have to update your living will to make sure it’s valid in your new home state. Like we mentioned a few times now, states love to have their own special laws—so if you want your will to be valid, you need to make sure it complies with the new rules.
Get Your Plan in Place
Hopefully it’s clear that some form of advance directive is important to have in place—for both you and your family. Whether it’s a living will, a medical power of attorney, or both, having an advance directive means your end-of-life decisions won’t be left up to others.
The great part is, creating a living will isn’t very hard. In fact, you don’t even need a lawyer for a living will. You can usually find an online option—just make sure it allows you to follow your state rules.
And if you decide a medical power of attorney is your best option, you don’t have to get a lawyer to put one of these in place either! 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. The best part? It only takes a minute, letting you get back to enjoying your best life with the people you love.
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