Advanced Health Care Directives and Living Wills

An Advanced Health Care Directive is a document in which the Grantor expresses his or her wishes in the event that he or she becomes brain dead, terminally ill, or permanently unconscious. An Advanced Health Care Directive is often referred to as a Living Will.  Regardless of your wealth, everyone needs a Living Will. Here are some of the most important reasons why you should prepare a Living Will:

A Living Will Allows You to Express Who Will make End of Life Medical Decisions on Your Behalf if You are INCAPACITATED

One of the most important things you must decide on when preparing a Living Will is who should be your Agent. Often times this is the same Agent that you name in your Medical Power of Attorney.  This is the reason that these two documents are often combined. If you do not have a Living Will, and you become incapacitated, unless your next of kin unanimously agree to a course of action, the doctors and the hospital will not know what to do. In such an event the only way your loved ones can make health care decisions for you is by instituting an expensive Guardianship action. It is much better for you to decide who you can trust to act as your Agent than to have a Court decide.

A Living Will Can Help Avoid Litigation

If you become incapacitated, your next of kin may fight over whether you should be kept alive or not. Many of you may remember the national clamor surrounding the Terri Schiavo case. Having a Living Will in place can help avoid litigation.  A clear, written plan enables you to decide what you wish to happen if you are in a vegetative state.  It also allows you to decide who will be in charge of making that decision. Additionally, a Court will usually side with the person you name as Agent in the POA.  (An exception to this is if the contesting party can show that the Agent you named was abusing his or her fiduciary duty.)

Common Misconceptions About Advanced Health Care Directives and Living Wills

  • An Advanced Health Care Directive is not a suicide note. It is merely a strong direction that you either wish to be kept alive or not kept alive in the event you are brain dead, terminally ill, permanently unconscious or in another similar condition. Since it is merely a strong direction, it is important to choose an Agent who will carry out your wishes, regardless of their own personal beliefs.
  • A Living Will can state that you do NOT wish to have the plug pulled and wished to be kept alive.
  • A Living Will is the same as an Advanced Health Care Directive – It is NOT the same thing as a Revocable Living Trust. 

Other General Benefits in Having a Living Will

  • Some nursing homes and hospitals require their patients to have an Advanced Directive for Health Care.
  • It relieves your next of kin from having to guess what you would want.
  • A Living Will can set out time frames for when people may act.
  • Having a Living Will provides peace of mind.
Kevin Pollock is the Wills, Trusts & Estates lawyer in charge of the firm’s Estate Planning Department. For more information on Powers of Attorney, please visit my blog: Kevin A. Pollock BLAWG

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