Person holding documents like a Living Will or Healthcare Power of AttorneyWhen you are starting out doing research on estate planning, you will probably come across a lot of documents that can be in your estate plan. The first thing to clear up is that a "Living Will" is different from a "Will" that you commonly hear about. A will is technically a "Last Will and Testament" and that document dictates what happens to your assets after you're gone, has provisions for guardianship for your children (if they are under 18), it can have a trustee if you're setting up a trust for your children, and it has many other provisions to make the administration of your estate easier on your family.

Living Wills

A "Living Will" on the other hand deals with medical and healthcare decisions while you're alive, and actually, it's a really specific part of medical and healthcare decisions. So the Living Will really addresses your "deathbed" issues like "Do Not Resuscitate" instructions and end-of-life decisions. It's a pretty short document - when you compare it to a Healthcare Power of Attorney, a Living Will is usually only two to three pages.

Healthcare Power of Attorney

A Healthcare Power of Attorney on the other hand can be 8, 9, or 10 pages and have a lot more to do with medical decisions and other things that may come up as opposed to just the end-of-life decisions. A Healthcare Power of Attorney is used to appoint somebody to make medical decisions for you if you become incapacitated. It's more comprehensive than a Living Will and it could provide for things like organ donations and autopsies and other things that could be really important if you become sick and are unable to make your own medical decisions.

Which One Should I Sign?

The most common question I get from my clients is: Should I do both of them?

My recommendation is that my clients always do a Healthcare Power of Attorney. This document is incredibly important, incredibly powerful to make sure somebody is there to speak for you if you become sick. But I will also say look at the Living Will. It's a short form, only two or three pages, and your attorney shouldn't be charging you extra for a Living Will or Healthcare Power of Attorney. Frankly, this should all be included in your estate plan. These are not ala carte documents, so I recommend looking at the Living Will and if you want to sign it, if it makes sense, then sign it. If you don't want to sign it, it's just not your cup of tea, then don't sign it. But make sure you get a Healthcare Power of Attorney because that's going to be a really important document for you in case you become sick.

Working With an Attorney

This isn't something that your attorney should be charging you ala carte for and this definitely isn't something you should just go to a website and hope you download the right form. Each state has different forms for healthcare directives and other healthcare documents. But I still recommend you go speak to an attorney. Make sure you're getting the right documents for you and your situation. You may go in there thinking I just need a Healthcare Power of Attorney and you may come out with an entire pack of documents that really helps you control these end-of-life decisions and what would happen to you if you become sick. You may need a General Durable Power of Attorney, which allows someone to make financial decisions. You probably want a HIPAA Authorization so that your healthcare agent can have access to medical records. Then you want your Healthcare Power of Attorney and your Living Will.

Next Steps

If you're ready to get started, let's set up a Legal Strategy Session, a 15 or 20-minute phone call to go over where you are in the process. Maybe you need old documents updated. Maybe you're starting fresh, but it's very important when you're considering a Living Will or Healthcare Power of Attorney to get in and talk to a professional to make sure you're getting the right documents for you and your situation.

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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