Stack of documents that may include a living will in your estate planWhen it's time to create an estate plan or update the one you've already got, it's important to understand the documents and how they work with one another. Your estate plan documents usually break into three main areas:

In the third category, there are a variety of documents that you will likely consider, like a healthcare power of attorney, HIPAA Authorization, and today's subject, a living will. It's important to understand these different documents and, for example, how a living will and a healthcare power of attorney are different. One common misunderstanding that I encounter with clients is that they think these documents are an "all or nothing" set of documents - they have to sign all of them or sign none of them. However, your estate plan is your set of documents and you can choose what to sign or not sign. If you don't want to sign a living will, there is nothing requiring you to do so.

What is a Living Will?

A living will, also known as an advance directive or medical directive, is a legal document that specifies what medical treatments a person would like to receive or refuse in the event that they become incapacitated and unable to make their own medical decisions. The purpose of a living will is to ensure that a person's end-of-life wishes are respected and carried out, even if they are unable to communicate them at the time.

One of the main advantages of having a living will is that it can provide peace of mind to both the person making the document and their loved ones. It can also help avoid conflicts among family members over end-of-life decisions, as the living will clearly states the person's wishes and intentions.

What's In A Living Will?

When creating a living will, it is important to consider a range of potential medical scenarios, including those related to terminal illness, permanent unconsciousness, and end-of-life care. Some common issues that may be addressed in a living will include:

  • Whether or not to receive life-sustaining treatments, such as mechanical ventilation, artificial nutrition, and hydration, or cardiopulmonary resuscitation (CPR)
  • Whether or not to receive palliative care, which is designed to alleviate symptoms and improve quality of life
  • Whether or not to receive pain management medications
  • Whether or not to be an organ donor

It is also important to consider who will make medical decisions on your behalf if you are unable to make them yourself. This is known as your "healthcare proxy" or "healthcare power of attorney." This person should be someone you trust and who understands your wishes as outlined in your living will.

Other Issues To Consider

It is important to keep in mind that living wills are not legally binding in all states and that state laws vary widely regarding the validity and enforceability of living wills. Therefore, it is important to consult with a lawyer or other legal professional to ensure that your living will is valid and enforceable in your state.

In addition to the living will, it's also important to have a durable power of attorney for healthcare. This is a legal document that allows you to appoint someone you trust to make medical decisions on your behalf if you are unable to do so.

Finally, it is important to review and update your living will periodically to ensure that it reflects your current wishes and that it is consistent with changes in your health or circumstances. It is also important to make sure that your loved ones and healthcare providers are aware of your living will and how to access it if necessary.

Having a living will is an important way to ensure that your end-of-life wishes are respected and carried out. It can provide peace of mind to both you and your loved ones and can help avoid conflicts among family members over end-of-life decisions. It is important to consult with a lawyer or other legal professional to ensure that your living will is valid and enforceable in your state, as well as to have a durable power of attorney for healthcare, review and update your living will periodically, and make sure that your loved ones and healthcare providers are aware of your living will.

Do You Need an Estate Plan?

If you don't already have an estate plan, or if you have one that needs to be updated, let's schedule a Legal Strategy Session online or by calling my Edina, Minnesota office at (612) 294-6982 or my New York City office at (646) 847-3560. My office will be happy to find a convenient time for us to have a phone call to review the best options and next steps for you to work with an estate planning attorney to get your estate plan prepared.

Andrew Ayers
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I work with business and estate planning clients to craft legal solutions to protect their legacies.
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