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Introduction

While a Last Will and Testament is often considered the backbone of a complete estate plan, a Living Will is essential in spelling out your end of life decisions. If at any point you’re unable to communicate your wishes---because you’re in a coma or because a doctor has diagnosed you as being incapable of doing so---a Living Will allows your family and physicians to rest assured that your own personal choices are being respected.

Use a Living Will if:

  • You want to specify your wishes so that it is more likely they will be carried out.
  • You are facing the possibility of surgery or a hospitalization.
  • You want to create a complete estate plan.
  • You have been diagnosed with a terminal condition.

Other names for a Living Will:

Living Will Form, Advance Health Care Directive, Advance Directive, Advance Medical Directive

A Living Will is different from a Power of Attorney:

Both a living will and a durable healthcare POA allow you to choose someone you trust to make certain medical choices on your behalf. You must be at least 18 to create either document and you must be of sound mind. That means no one is allowed to coerce you into making a living will or healthcare power of attorney.

But while a living will is generally limited to deathbed concerns only, a durable power of attorney for healthcare covers all health care decisions. It lasts only as long as you are incapable of making decisions for yourself.

Since a living will generally covers very specific issues like “DNR” (or “do not resuscitate”), it may not deal with other important medical concerns you might have. For example, some people may want to refuse dialysis or blood transfusion, and those sorts of concerns can be directly articulated in a healthcare power of attorney. This is why it’s often a great idea to have both documents in your estate plan.

Who to appoint as your Living Will agent:

While you’ll be responsible for setting out your wishes in your living will form, selecting an agent to enact these wishes when you’re incapable is an incredibly important choice. In nearly every state, this person will have to be a legal adult, aged 18 or over, and this person will have to act in accordance with your wishes. That’s a key point: they will not be making your decisions for you (like they might in a power of attorney), but they will need to make certain that your wishes are carried out as you set them down.

That means you’ll want to have a frank discussion with this person before you choose them. Are they comfortable with your decisions? Do their religions beliefs allow them to carry out your wishes? Make sure you and your agent are on the same page about these issues.

Also, be sure your agent is, above all else, mature and responsible. Carrying out the healthcare decisions of a friend or family member is no easy task. Keep in mind you can (and should) select an alternate agent in the event your primary agent cannot be reached or is otherwise incapable of enacting the choices you’ve made in your living will.

When to update your Living Will document:

Living wills are usually updated for the same reasons as a last will and testament, namely after important life and family events. For example, you may have selected a spouse as your agent but now you’ve now divorced.

Another reason you may need to update your living will is if you’ve moved. Depending on where you’re settled, some states don’t accept living wills from outside their borders. Some states may require more witnesses when signing, perhaps.

To update your living will, it’s generally advised that you simply create a new one. Our step-by-step living will interview can guide you through the process and our living will form contains language that invalidates your previously legal living will.

What happens if your physician refuses to act on your Living Will:

This is a rare occurrence, but it does happen. Your physician may have certain ethical or religious reservations about following the choices you’ve laid out in your living will document.

To avoid any issues, it’s best to provide your primary physician with your living will before it’s needed. Talk through your choices and understand what medical treatments are available. Make sure your physician is willing to follow your requirements. If not, your physician may be under an obligation to transfer you to a doctor who is.

Other estate planning documents:

A Living Will is just part of your estate plan. Here are some other documents you might need:

If you have any questions about what’s right for you, we can connect you with a lawyer for quick answers or a document review. For more information about estate planning, visit Rocket Lawyer's Estate Planning Guide.

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