McClellan Legal LLC Estate Planning & Tax Assessment Blog

Friday, June 20, 2014

Living Will v. Will

Many people ask me to explain the difference between a Living Will and a Will. They are two completely different documents and address different issues. A Will is only implemented when you pass away and allows you to set forth the beneficiaries of your estate, the executor of your estate, and name guardians for any minor children. A Will also allows you to describe how and when your beneficiaries will receive their inheritance.

A Living Will is a health care document that allows you to retain control over whether or not you want your life to be prolonged by the use of artificial means when you are incapacitated and have a terminal condition or are permanently unconscious. The main reason people execute a living will is so that they will not have to burden their family members with making a decision to pull the plug.

Any individual who is of sound mind and at least 18 years old may execute a Living Will. A Living Will is not a Health Care Power of Attorney. While both documents are health care documents, a Health Care Power of Attorney is a much broader document that authorizes someone you name as your agent to make health care decisions for you, in the event that you are unable to speak for yourself or make your own decisions. For example, your health care agent will make decisions, such as, selecting a hospital, a physician, a surgeon, and determining the type of medical procedures to administer. Again, a Living Will is much more limited and only addresses your wishes during end of life situations. Some lawyers draft a combined Living Will and Health Care Power of Attorney while other lawyers draft them as separate documents.

You should provide copies of your signed and witnessed Living Will, along with a copy your Health Care Power of Attorney, to your physician. It is also a good idea to provide copies of your heath care documents to your family members and your health care agent. You can also upload both of your health care documents into an online storage system (e.g., LegalVault or Docubank) that will provide medical personnel instant access to your health care documents in case of emergency. Most online storage companies will provide you with a wallet card that will inform medical personal how to download your health care documents.

If you have any remaining questions regarding Living Wills, please contact my office so that we may discuss your concerns.

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