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What's the Difference Between a Living Will and a Last Will ?

By William D. Block of Block Legal Services, LLC posted in Wills on Tuesday, October 18, 2016.

You've heard the phrase "Living Will" before, but that's just another word for the same kind of will you already have ... isn't it?

In this installment in my series on the Limitations of Wills, I'm going to address these drastically different documents that only seem alike because of a confusing turn of phrase.

A Living Will is a document that gives instructions and authority to someone who can act on your behalf if you become incapacitated and unable to make decisions on your own. Like my first post says, Wills Do Not Protect You In The Event Of Incapacity - Last Wills only deal with the distribution of property.

As if two different types of Will aren't bad enough, Living Wills are often talked about together with several other documents, such as Power of Attorney for Healthcare, Declaration to Physicians, or Healthcare Directive. Sometimes these documents do different things, but sometimes they're just different terms for documents that do the same thing. Whatever it's called, a complete plan will do all of the following:

1. Assign an Agent for Healthcare Decisions

If you become unable to make your own healthcare decisions, it's important to have someone else that can step in and make hard choices on your behalf. This power is given by a Power of Attorney for Healthcare document (which can be included as part of a comprehensive Healthcare Directive). If this power is not created during someone's lifetime, their loved ones may be forced to go through guardianship proceedings in court. This process can be expensive and take up valuable time that the person doesn't have.

2. Assign an Agent for Financial Decisions

You need an agent for your financial care just as much as you need one for your medical care, and these agents are typically appointed by separate documents. These agents can be the same person but don't have to be. Your financial agent will be able to pay your bills for you and manage your assets when you can't do it yourself. Again, without having a financial agent appointed, guardianship may be the only option.

3. Leave Instructions for Care

It's important to have a set of instructions for how you would like to be taken care of. These instructions are usually referred to as the Directive to Physicians Depending on the individual's preference, the agent can be bound by these instructions or simply use them as guidelines. Usually, though, any healthcare professional that isn't your agent will be bound by your instructions. If you have an opinion about whether drastic life-savings measures should be used, or whether life support should be removed if there is no likelihood of recovering from a permanent vegetative state, those opinions would be expressed in this section.

4. Provide Funeral and Other After-Death Planning

If you are in a serious medical conditions, it is likely that your loved ones will consult your Healthcare Directive to see your wishes on your treatment. These documents can also give instructions and authority to your agent to make plans for your final resting place, including any special services you would like. This document can also spell out whether you wish to be an organ donor.

Is There Any Way To Make This All More Simple?

There is! At Block Legal Services, I can create a comprehensive Healthcare Directive that will cover all aspects of your healthcare coverage. Along with a Financial Power of Attorney, this document will be customized to your particular goals and circumstances, and will give your loved ones the authority they need in order to take care of you and your affairs.

If you already have documents in place, I can review them to make sure they do everything that you want them to. My main concern is that you have peace of mind about your estate plan, which comes from understanding the plan you have and having a plan that does what you want it to.