What is a Living Will?

Odds are you’ve heard the term “living will” used in conversation. If you’re thinking about estate planning, the term living will may show up on a to-do list template. The reality is that if you are an adult, you should have a living will. With this noted, if you are like many people, you really don’t have all the facts you need to fully understand what a living will is and does. You are presented here with a comprehensive overview of a living will.

Living Will Essentials

At its essence, a living will sets forth what types of care and treatment you would like undertaken on your behalf when you are not able to make such decisions for yourself. Specifically, you are able to identify extraordinary types of medical care you don’t want to receive. For example, if you have a terminal illness, you can set forth in a living will that you do not want CPR performed if you suffer heart failure. You can indicate that you want to forgo the use of life support equipment, like a ventilator. You can also specify those types of treatments and care you desire to have when you are not able to make such decisions for yourself.

Living Will Versus Durable Power of Attorney for Healthcare

A living will typically is prepared in conjunction with what is known as a durable power of attorney for healthcare. A durable power of attorney for healthcare designates an individual who will make healthcare or medical decisions for you when you are not able to do so. The agent named in the instrument is empowered to carry out your medical care issue when you cannot do so on your own.

Because the living will works in conjunction with a medical power of attorney, the agent named in the power of attorney is obliged to follow the directives you include in a living will. A living will constrains the breadth of decisions that can be made by an agent named in a power of attorney.

How to Create a Living Will

In the state of California you are able to legally combine a living will and durable power of attorney into one legal document or legal instrument. This combined document is called an advance healthcare directive. You are also able to utilize two separate documents as well, depending on your personal preference.

You have a number of primary ways in which you can create a living will (or a comprehensive advance healthcare directive). First, you can prepare a living will on your own. You can accomplish this by using any number of software or online templates that are available in this day and age. You do need to bear in mind that if you go this route, you need to make sure that the standard form you select meets the legal requirements of the state in which you reside. You also need to be sure that the software program or other template utilizes a current version of a living will, according to your state’s law

Second, if you are going to be undergoing some type of medical procedure, you are likely to be able to obtain a living will, durable power of attorney, or a comprehensive advance healthcare directive from the hospital or even your doctor. In theory, these standard forms should be up to date and certainly based on appropriate state law.

Third, if you are a member of a church, synagogue, mosque, or some other religious organization, you may be able to obtain a living will from that organization. Some faith-based groups have guidelines for living wills. Thus, by obtaining a living will from your faith community, you should have a document that both meets legal muster and follows the beiefes of your faith tradition.

Finally, if you are considering retaining a lawyer for estate planning, the preparation of a living will and associated documents can be part of the overall services for which you engage legal counsel. The reality is that an estate attorney is not at all likely to charge an exorbitant fee for the preparation of a living will.

Organ Donation and Autopsy After Death

Generally speaking, a living will ceases to exist when an individual dies. With that said, there are two directives that can survive the deal of a person when contained in a living will. First, a living will can include a provision permitting organ donation after death. Second, a living will can contain a provision either authorizing or prohibiting an autopsy.

A provision prohibiting an autopsy can be overridden if the death is the result of a crime or some type of suspected communicable disease. There are instances in which a person wants to prevent an autopsy after death for religious reasons.

Funeral and burial directives should to be included in a living will. You need to prepare some other type of document to address those issues.