A living will is an important document that is part of a set of legal documents called an advance directive. If you become incapacitated and unable to communicate your wishes, your healthcare provider can refer to your living will to determine what life-sustaining procedures you consent to. A living will is also a kindness to your family members. It eases making difficult healthcare decisions—having your wishes regarding medical care in writing guarantees that you are treated in the manner you desire. It leaves no confusion about what medical treatments you want if certain events occur. Additionally, a living will can help you from becoming a financial burden on your family if you end up on long-term life support and have no wish to be.
The living will and the durable healthcare power of attorney make up your advance directives. It's never too early to have these documents prepared for your benefit and the benefit of your family members.
Clearly explaining what medical care you want is your right should you choose to exercise it and is highly recommended. If you choose not to prepare an advance directive, you risk medical decisions being made for you that you do not want. A frank and open conversation with an estate planning attorney will save you and your family a great deal of time, confusion, and potentially money.
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The estate planning attorneys at O’Flaherty Law are experienced in guiding clients in the planning and preparation of advance directives. An O’Flaherty attorney will meet with you for an initial consultation to discuss your situation and give their opinion on what will best achieve your goals. After you sign a legal services agreement with O’Flaherty Law, you will further discuss your medical care wishes with the estate planning attorney. You and your attorney will discuss the procedures you want and do not want. Additionally, the estate planning attorney will advise you on choosing someone to act as your healthcare power of attorney, which is the second part of an advance directive. Once all your decisions are made, the two documents will be prepared for your review and approval.
The estate planning attorneys at O’Flaherty can assist with all planning for end of life and afterward, from a simple set of advance directives to a global estate planning strategy and implementation. Your attorney will address all your questions and concerns ahead of time, giving you peace of mind.
The purpose of a consultation is to determine whether our firm is a good first for your legal needs. Although we often discuss expected results and costs, our attorneys do not give legal advice unless and until you choose to retain us. We take your legal matters very seriously, which is why with each consultation, we strive to ensure you feel confident about the future of your case.
From a legal standpoint, your O'Flaherty Law attorney will provide guidance and feedback and assist you with clarifying your healthcare goals. You and your O’Flaherty Law attorney will meet and have a frank discussion about what an advance directive is and your wishes if certain medical situations should occur. Your O'Flaherty Law attorney will also go over “what ifs” with you to be confident that you are prepared for as many potential problems as you can be. Once your goals are clarified, your O’Flaherty Law attorney will also help you evaluate a potential healthcare proxy to be named in your durable healthcare power of attorney, which is a serious decision.
Before signing the advance directive, your O’Flaherty Law attorney will make sure that you understand what each document does and what each does not do. An advance directive is for healthcare decisions only; it is not a will or trust.
Once the advance directive is complete, your O’Flaherty Law attorney will instruct you on where to keep the documents for access if you should become incapacitated.
Most people would agree that if they were to suffer a medical emergency that left them incapable of conveying what treatments they did and did not want, they would want some trustworthy way to give direction to a family member or person with HPOA as to what their wishes are if they are incapacitated and cannot communicate. The living will details what treatments or lifesaving procedures you want if, for example, you are in a coma and cannot verbalize or otherwise communicate what you want. It is a legally operative document that specifically states if you want medical procedures such as life support, dialysis, medical ventilation to keep you breathing, CPR if your heart stops, and comfort care.
A living trust and a living will are two very different legal documents. A living trust is a trust created during your life that you transfer assets into (money and real estate) and retain control over while you are still living. If you have a living trust, you will typically also need a legal document called a “pour-over will,” that an O’Flaherty attorney can explain and create if you need one. On the other hand, a living will is simply part of the two-document team that makes up your advance directive for healthcare decisions. A living will have no connection to assert control. A living will is created strictly to handle healthcare decisions if you are incapacitated.
When the party who pays child support experiences a change in circumstances child support will need to be recalculated and a modification ordered. The reasons for modification are typically that the party paying the support has received an increase in income either from their employment or sometimes after receiving an inheritance. On the other side of the coin, if the party paying child support is fired or experiences a decrease in income, they will also need to request a child support modification from the court or be in danger of accumulating child support arrears, which can be very difficult to recover from financially and comes with many potential penalties. Child support payments must be made in the same amount until the modification order is entered.
You will need to specifically state in the documents what you will accept as medical treatment and what you will not. Here are examples of the big questions a living will answers for your family and healthcare providers:
The durable healthcare power of attorney, or HPOA, is where you name a trusted individual as your healthcare proxy. Typically, the HPOA is a trusted family member or close friend, ideally, one that you have had a frank discussion with about what your wishes are if you become incapacitated and whom you trust to follow your wishes. Your healthcare proxy will have total power over what healthcare decisions are made for you, typically with guidance from your living will, so you must carefully decide. If you cannot make your own healthcare decisions, your proxy will do it on your behalf.
Since your healthcare proxy, also sometimes referred to as a “healthcare surrogate,” will have complete control over treatment decisions, they must know as much as possible about your wishes, which is where the living will comes into play and gives direction to your proxy. Your healthcare proxy can only make decisions based on their knowledge of what you want regarding medical treatment. If your proxy doesn’t know what you want beforehand, they can hardly direct the healthcare provider to administer or withhold the treatment. Therefore, it is crucial to include as many details as possible when preparing your advance directive.
You should select someone you trust to adhere to how you want things done. Furthermore, you should pick someone who would be comfortable speaking up on your behalf in the event of a conflict and be able to make decisions in rapidly changing circumstances.
Living wills generally fall under the umbrella of “advance directives,” but they are not the same thing. A living will and a durable healthcare power of attorney form your advance directive. You can also have documents drafted to take effect in the vent that you suffer from a specific medical condition or if a particular series of healthcare crises occur. For instance, if you are in a coma and your heart stops, you can dictate that CPR not be administered.
While you will have the opportunity to ask all the questions you want to ask about creationing your living will and your advance directive, we want you to be as fully informed as possible. The following questions are our most frequently asked questions about living wills and the advance directive.
Yes, the two documents are very different. A will is a document that states how you want your estate disposed of after your death. A living will is a document that explains what kind of healthcare treatments you want and does not want if you become incapacitated and unable to convey your treatment wishes. When you pass away, your estate is what you leave behind in the form of real property, personal property, and money.
Your living will requires two witnesses, and all signatures must be notarized. It is important that your living will be at least reviewed by an attorney in your state because a mistake on the document, even a small one, can render the living will invalid. Although the living will can seem like a very straightforward document, every state has its own set of laws for a living will, so it is in your best interest to at least consult with an attorney prior to signing in front of a notary.
Your durable healthcare power of attorney will need two witnesses, some states require a notary, and some don’t. The best approach would be to have the durable HPOA notarized.
Generally speaking, you should choose a specific kind of witness for the documents. The witness should be over the age of 18, should not be your healthcare agent/proxy, should not work for your healthcare provider, should not have financial control over your assets if you become incapacitated, and at least one of the witnesses should not be a blood relative.
No, it cannot The two documents complement one another, but an HPOA does not override a living will. The living will is intended to act as a set of instructions for your healthcare proxy, they cannot make choices for you that contradicts anything in the living will.
Yes, you can change all of your advance directives and revoke a durable healthcare POA as long as it can be shown you are of sound mind and understand the consequences of your actions.
Ideally, you should only have one healthcare proxy so that the opportunity for disagreements about your care does not come into play. However, it is recommended that you select a healthcare proxy alternate in the event that your first choice is unable to perform as your proxy.
Sometimes a concerned friend or family member may challenge either the authority of your living will or the choices of your healthcare proxy. To challenge your living will, the party must petition the court to declare your living will invalid, either because you were not of sound mind when you created the living will or it is procedurally incorrect and therefore not legal. Working with a qualified estate law attorney will significantly increase the chances of your living will being upheld by a court.
A party may also challenge the decisions of your healthcare proxy by filing a petition with the court, usually on the basis that your selected proxy is not adhering to your wishes. An investigation of the decisions made by the proxy will be investigated. If the court finds that the proxy is not making the decisions you would want, the court can revoke the proxy and their power to make healthcare decisions for you.
Some states have “default surrogate consent laws” where they establish a hierarchy of family members to make healthcare decisions for you. These used to be called “family consent laws.” Other states have begun recognizing close friends as potential surrogates. If you have neither family nor an available close friend, sometimes a panel of doctors at the hospital will meet and make decisions for your care. In other words, if you do not have an advance directive or a guardian and you are incapacitated, you cannot be sure who will make decisions for you or what decisions they will make for you.