A Complete Guide to Living Wills: What Are They? And Why Are They Important?

A living will is one of the best gifts you can give your loved ones. If you have a medical emergency, this document can help guide your treatment, prevent family conflict, and ensure your wishes are met. 

To learn more about living wills, we reached out to several legal experts, including:

• Jeffrey A. Asher, Esq., an estate planning attorney based in New York

• Taylor Tomanka, a probate and estate planning attorney at Fergus & Tomanka, PLLC in Round Rock, Texas

• David Reischer, Esq., an attorney and the CEO of LegalAdvice.com

• Allan M. Siegel, an attorney and the Founder of Chaikin, Sherman, Cammarata Siegel, P.C.

Below, our panelists answer some of the most common questions about living wills and provide some tips for creating one.

What is a Living Will?

A living will is a type of advance directive. It’s a legally binding document that helps guide decision-making for people who are:

• Terminally ill

• Seriously injured

• In a coma

• In the late stages of dementia (or another neurodegenerative disease)

• Near the end of life

“A living will provides written, legal instructions regarding your preferences for medical care for circumstances when and if you’re unable to make decisions for yourself,” Resicher said.

“It’s an important document because it allows a person to make their intentions known in anticipation of a possible future moment for when intent cannot be communicated.”

Are All Living Wills the Same?

The rules for writing and executing living wills vary from state to state.

“In Texas, where I practice law, a ‘living will’ is called a ‘directive to physicians,’” said Tomanka. “We also have a separate ‘out-of-hospital do-not-resuscitate order’ (non-resuscitation, at home only) and ‘medical power of attorney’ (all other medical decisions).”

“Since every state is different, it’s important to check with a lawyer in your area to ensure that all of your needs are met.”

Who Should Have a Living Will?

“Everyone should have a living will because everyone should want to exercise their right to accept or refuse medical treatment, including life-sustaining medical treatment,” Asher said. 

“Second, yes. You should have a living will, even if you’re in good health. For precisely that reason. You might be in good health now, but a living will is intended for when you aren’t. And, many times, when you’re in bad health, it may be too late to execute a living will.”

Reischer agrees.

“Even people who are in good health should have a living will in case of incapacitation as a result of random life-altering circumstances.”

“That’s especially true for married couples,” Reischer said. “A living will relieves your spouse of the legal and ethical burdens of caring for you by making it clear that you don’t want to continue living if there is a diminished quality of life due to medical conditions that limit your mobility, brain activity, or other normal bodily functions.”

What Should I Consider (medical decisions) Including in a Living Will?

“As mentioned, a  living will is a written statement of your desire to have, or not have, your life extended by unnatural extraordinary means,” said Asher. 

Specifically, it covers all methods of ‘life-sustaining treatment’, including:

• Cardiopulmonary resuscitation (CPR)

• Mechanical ventilation

• Tube feeding

• Dialysis

• Antibiotics or antiviral medication

“But, a living will does not appoint someone to communicate those wishes to your medical staff,” Asher said. 

“That’s what a Health Care Proxy or Advanced Directive for Health Care Decision-Making or a Health Care Power of Attorney is for. So, one consideration is making sure you have a Health Care Proxy, in which you designate an agent to make health care decisions for you.”

What Is a Health Care Power of Attorney or Health Care Proxy?

Another great question!

“A health care proxy, also known as a “health care surrogate” or “medical power of attorney,” allows someone to designate another person, known as an agent or proxy, to legally make healthcare decisions for circumstances when said person cannot do it themself,” said Reischer.

“The documents typically include provisions for wishes regarding intent for resuscitation via a "Do Not Resuscitate" or "DNR" clause that authorizes a representative to execute decisions based on the 'living will' documents.”

“Unlike a living will, a healthcare proxy doesn’t require that a person know in advance all the decisions that might arise. Instead, a health care agent can interpret your wishes as medical circumstances change and make decisions on your behalf.” 

What Should I Consider When Choosing a Health Care Proxy?

“When planning for the future, really think about the person you designate to make healthcare decisions for you,” Tomanka said. “At the very least, you should choose a person who meets the following criteria”:

• Fits your state's requirements for a healthcare agent

• Is not your doctor or a part of your medical care team

• Is willing and able to discuss medical care and end-of-life issues with you

• Can be trusted to make decisions that adhere to your wishes and values

• Can be trusted to be your advocate if there are disagreements about your care

 Come up with a list of 3-5 people. Then, contact those friends or family members and see who might be interested or willing to serve in the role.

Can I Draft a Living Will on My Own?

“If you’re ill and need a quick fix, just in case, then by all means, complete a living will by yourself,” Tomanka said. “However, a living will is just a small part of your overall estate plan, so I would suggest consulting with an estate planning attorney in your state to ensure everything is taken care of should you be unable to make those determinations in the future.”

Still, “it’s hardly ever a good idea to use a DIY ‘doc prep service’ to draft a living will,” Reischer said. 

“Many companies that provide such services don’t take the place of an actual licensed attorney. Nor can they guarantee a 100% ironclad contract that will operate as the person intended. 

It’s better to speak with an actual lawyer to learn all the peculiarities of the scenario and assess with applicable state law.”

Asher concurs, saying, “Don’t draft a living will on your own. The worst thing possible is to think you’re doing it correctly, only to find out later that it’s all wrong. At that point, generally, it’s too late to fix or do anything about it.”

Takeaways

A living will is an important document all adults should consider drafting. No one knows what the future holds, and life can change in an instant. 

“Detailing what your loved ones should do if you end up in the hospital or a long-term care facility will help them know your wishes without having to guess. A living will gives you control over your life even if you're too sick or injured to appreciate your preparation,” Siegel said.

Though creating a living will is vital, remember that it’s only the first step.

“A living will should really be part of a more comprehensive discussion of estate planning,” Asher said. “Preparation is incomplete if you’re only focused on what could happen if you suffer a catastrophic illness or a devastating injury. Scheduling a free consultation with a qualified Estate Planning attorney can help you determine the next steps.”