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Living Wills: Top 10 Facts You Should Know

It is not fun to think about, but do you know what you would want to happen if you were in an accident or became so ill you could not make decisions for yourself? And more importantly, do others know your wishes? A living will —also called an "advance healthcare directive"—allows you to outline your preferences and wishes so your family know what to do in an emergency situation. Once you have created a living will, you will get the peace of mind that comes from knowing your wishes are followed and your family will have some comfort during a stressful time, knowing they are doing what you want.

A living will is different from the types of wills used to pass property and assets on to family members, friends, or even organizations after a death. Instead, a living will is a way to let physicians and your family know what you want when it comes to medical care. If you are unable to communicate or make decisions, your living will can convey your wants and needs and ensure your wishes are followed.

Whether you are helping a loved one or working on your own estate plan, a living will is an essential component. This document can help you get peace of mind about your wishes and make it easier for your family in the event of an emergency. They will not have to guess what you might want or feel badly about the decisions they make on your behalf. Left to their own devices, your family members could even quarrel over your care, so stating your wishes can help everyone cope during a difficult time.

1. Living Will Rules Vary by State

The rules for living wills vary depending on where you live. In some cases, this document is not called a living will at all; it could be referred to as a directive or a healthcare directive. Every state has a slightly different procedure for living wills and different requirements about the creation and execution of these useful legal documents.

You should create your living will based on the rules of the state you live in, but if you spend a lot of time in more than one state, you should double check to make sure your will is valid in your second state as well. This situation is most common when you live in one region during the winter and one in the summer to escape extreme weather. Most states do accept living wills from other states as long as the document is valid in the state in which it was created, but not all do, so it is important to check when your living will is created.

No Need for Concern

In most cases, there is no need for concern. You have a right to direct your own health care and states are not permitted to infringe upon your basic rights, even if your documents do not completely follow state law or are not covered under reciprocity.

3. Doctors Determine If You Are Permanently Unconscious

A doctor will need to make the determination that you are permanently unconscious or terminally ill, and a second doctor needs to agree. Someone cannot just declare you as unfit, unconscious, or unable to make decisions; it needs to be a true medical state and agreed upon by one or more medical professionals. If you are conscious and capable of making decisions, your living will cannot be put into effect. Discussing your living will and your wishes with your doctor ahead of time can help ensure your needs are met and that he or she is willing to comply with the medical decisions you have outlined.

4. A Living Will Can Be Changed

If you create a living will but later change your mind, you can do so. You can revoke the initial living will and create a new one or you can cancel the other will entirely. The approach you take will depend on the changes you are making and what you want from the new will. Destroying your copy is not enough; it is still a legal document that could be attached to your other estate planning documents or files. You need to fully revoke or formally change the will to make sure your wishes are followed. While you can change your living will, no one else can change it for you without permission.

5. What Is the Difference between a Living Will and an Advance Directive?

According to the National Institute on Aging, an advanced directive is a general term that covers both written and oral instructions about your healthcare needs. A living will is just one type of advance directive.

6. Even Young People Need a Living Will

It is tempting to think of a living will as something that is designed for seniors or older people, but adults of all ages can benefit from this legal document. While you may be more likely to think of creating a living will (and other estate planning documents) when you get older, even healthy young adults can be injured or become unexpectedly ill.

Traffic accidents, sports accidents, and even unexpected illnesses can cause young, otherwise healthy adults to become unable to make their own decisions about their health care. A living will allows you to state your preferences in advance, just in case the worst happens. Creating your living will at a young age can also give those who care for you most peace of mind about your preferences. Your parents or spouse are the people most likely to be faced with these terrible decisions at a difficult time. When you create a living will, you take some of the burden off your loved ones.

7. A Living Will Is about More than "Pulling the Plug"

Fodder for comedians and sitcoms, jokes about “pulling the plug” when someone is ill or in an accident do not convey the full picture. A living will can be used to make decisions about being kept alive in extreme circumstances, but it is also the ideal way to make your treatment and care preferences known. If there are methods you do want, from a preferred pain control, to your comfort, or even specific procedures or products you have strong feelings about, then a living will ensures your preferences are known.

8. You Can Appoint a Healthcare Agent

A healthcare agent is not a doctor or insurance sales person; they are the person you choose to make treatment decisions for you if you are unable to do so for yourself. If you are unconscious, in surgery, or too sick to communicate your wishes, then your agent can do so for you. Your agent is chosen by you and can be almost anyone. However, there are a few exceptions, as follows:

  • Your agent needs to be an adult and competent to make decisions
  • Your agent cannot be your own doctor or anyone on their team in order to avoid conflicts of interest
  • Your agent cannot be the person who owns, manages, or works for the facility that is treating you

The person you choose needs to be able to speak with your doctors and make reasoned, well-thought-out decisions on your behalf. This is an important role with significant responsibilities, so make sure the person you choose is truly capable of dealing with this during a stressful emergency situation.

Talk with anyone you are considering to make sure they are up to the job and willing to handle the responsibility. You will also need to go over your preferences and what you most want in the case of an emergency, critical care, or end-of-life situation. This is also the time to talk about quality of life and your final preferences, so your agent can truly enact your wishes if the time comes.

9. What about Power of Attorney?

Power of attorney gives another person the ability to make decisions for you and act on your behalf. A general power of attorney allows for broad coverage; the person you choose can handle your business, financial, and other choices. You do not need to give someone general power of attorney to have them serve as your healthcare agent or to create a living will.

A healthcare power of attorney is a specialized form that allows your chosen person to make medical decisions for you if you are unable to do so. If you are unconscious, mentally incompetent, or too sick to make your own decisions, this specialized form of power of attorney can help. It is not the same thing as a living will, but it is part of the planning process and an option you should be aware of.

10. Will My Doctors and Family Really Comply with My Living Will?

Your doctors are the ones who are ultimately held responsible for your treatment; they are not required to follow your living will. Even though they are not required to follow your wishes, most will do so. The best way to learn if your doctor will respect your wishes is to talk about your living will in advance and let them know what you have outlined and chosen. If your doctor has an issue with your decisions or choices, they will be able to speak to you about it in advance.

This conversation is important to have, even if you are sure your doctor will follow your wishes. There may be medical aspects you have not considered or included in your living will plans. Your doctor could raise additional questions, clarify points, or even spot something you have missed or overlooked.

In an emergency, a physician’s choices could override your living will for another reason; if proper care dictates you to be treated in a certain way or there is an ethical obligation, that could override your wishes. Your doctor should let you know about any concerns or potential issues when you give them a copy of your living will.

If you provide a copy of your will and your doctor is unwilling or unable to comply, then they will need to transfer you to another physician who will honor your wishes.

Your living will is an essential part of your estate plan and can be changed and altered as needed as your specific needs and preferences change over time. Taking the time to create this document and outline your wishes will give you peace of mind and help your family cope during a stressful time.

How to Create Your Living Will

Use our customizable Living Will Form to quickly and easily create, download, and print your living will in just minutes online. Start now to make sure that your wishes are known in case of an emergency.