What’s a Living Will?

If you’re like most people, you’ve heard the term, “living will,” but have some questions about it.  What is a living will?  Why do I need one?  Is it the same as a will?  What’s it all matter anyway?

In general, the term “living will” refers to a document in which a person can set forth his or her wishes relating to future medical care, in particular, end-of-life care.  It is different than a Last Will and Testament wherein you set forth your instructions for your estate following your death. Unfortunately, there is no consensus among the states about what constitutes a living will.  While some states specifically authorize the use of living wills, others have adopted documents such as durable powers of attorney for health care, advance health care directives, directives to physicians, and other similar documents.

In California, the document which serves as both a durable power of attorney for health care and a living will is called an Advance Health Care Directive.  In this document, which has a statutorily prescribed format, you can designate an “agent” to make medical decisions on your behalf, normally when you are unable to do so due to some physical or mental infirmity and to control the disposition of your remains.  In the same document, you can also set forth your preferences concerning such matters as end-of-life care, relief of pain and organ donation, among others.

These Directives are a critical part of a comprehensive estate plan that addresses not only the handling of affairs following death, but the need for decision in the event one becomes incapacitated.  Without one, you risk putting yourself and your loved one’s through much agony.

Consider the case of Terri Schiavo of Florida.  Terri didn’t put her wishes about end of life care in a legal recognized writing; and, when she collapsed, she was hooked up to life support machines.  When it became clear to her doctors and husband that she would not get better, her husband sought to have the life support machines removed, to let Terri die naturally.

Terri’s parents disagreed.  Years of court battles followed.  Fifteen years after being put on life support, it was finally removed and Terri died naturally.  At her death, an autopsy was conducted and it was confirmed that Terri had been brain dead the entire fifteen years.

If you don’t want this to happen to you, you need to create and sign an Advance Health Care Directive; talk to your family, explaining your wishes; and ensure that the Directive is available when needed.

If you don’t have an Advance Health Care Directive, consult with an experienced and qualified estate planning attorney.

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Timothy P. Murphy

Timothy P. Murphy is an estate planning and elder law attorney whose practice emphasizes helping people to build, preserve and pass on their wealth. He works with his clients to accomplish their goals while avoiding unnecessary court proceedings and minimizing or eliminating exposure to death taxes.

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