Living wills have become more requested recently by my clients. In the pre-Coronavirus meetings, most clients had not ever heard of a living will. In fact, many of them confused a living will with their Last Will and Testament (commonly known as your “will”). But now that we’ve been dealing with the pandemic, many of the prospective clients I meet with (virtually these days) have heard of living wills and are curious about the role they play in their estate planning documents. A common question is whether they need to choose between a living will and a health care power of attorney. These are both state governed documents, which means they can differ from state to state. So before you choose, you should talk to a lawyer licensed in the state where you live.
Even though it’s called a “Living Will”, it actually relates to health care and medical decisions. For many clients, their planning documents include both a Living Will and a Healthcare Power of Attorney. But there are important differences. And one important decision you need to make is if your Living Will and the Healthcare Power of Attorney conflict, which document should be the one that “wins” the conflict.
Living Wills vs. Health Care Power Of Attorney
Living wills are normally limited to deathbed types of issues. You will usually address “Do Not Resuscitate” directions and end of life decisions. These can also be generally addressed in a health care power of attorney. It is normally a much shorter document than the healthcare power of attorney.
A health care power of attorney covers your medical decisions when you are incapable of making those decisions for yourself. It can be more broad in its scope than a living will. You can direct medical decisions for your deathbed issues as well as while you are still alive. You can also permit your agent to make sure that your organs are donated and that an autopsy is performed. This last bit has become more relevant recently as people try to determine the extent to which COVID-19 plays a role in their loved one’s death.
Should I Do Both?
As a broad principle, I usually recommend a health care power of attorney for my clients to use the variety of medical decisions that you can include. Some people request to have both documents created, but normally that is not necessary. Since you can include the directions that would be in a living will in a health care power of attorney, it’s more expeditious to use just one document.
Do I Need One?
It used to be common that my clients wondered if they needed a health care power of attorney. But if you pay attention to the news, you can see the importance of these documents. If you or your family member becomes ill and is unable to speak, they need someone to advocate for their wishes. You aren’t required to have one, but it’s a good idea. According to news reports, hospitals are pretty chaotic these days as they try to deal with COVID-19 cases on top of their usual load of patients. Anything you can do to ensure that your wishes are heard and respected is a good step forward for you and your family.
If you are already working with an attorney to draft an estate plan, these are documents you should consider including. It doesn’t make sense to only plan in piecemeal.
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Next Steps
If you’ve been considering a living will and now realize you really need a full estate plan, or this is the first you are hearing of it and would like more information, call my office to set up a Legal Strategy Session and we can discuss if it is the best option for your situation – (877) AMAYERS.
