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 What is a Living Will?

Living wills are directions you leave for your family and doctor should you become so sick that you cannot make healthcare decisions yourself. They are also known as medical or health care directives. Living wills are not just for elderly adults but can serve a purpose for everyone. No one plans on being in a car accident, but it can happen, and if it happens to you, a living will can ensure that your values and wishes are given effect.

A living will is often created in advance of a serious medical situation. For example, an individual with a serious illness may draft a living will that provides instructions regarding legal and medical decisions if their illness progresses and places them in a situation where they become incapacitated; for example, slipping into a coma.

Living wills typically assign an individual to take over as the testator’s representative. This person will make the decisions on their behalf if necessary. Depending on where you live, this type of representative may be referred to as a:

  • Patient advocate;
  • Health care proxy;
  • Health care agent;
  • Health care surrogate

All of the terms listed above describe an individual legally permitted to make medical decisions on their behalf if they find themselves in a situation where they cannot do so themselves.

You can benefit from making a living will for several very good reasons. For instance:

  • You may be physically or mentally incapacitated and unable to express yourself when making decisions. Someone will have to make those decisions, and it makes sense for you to choose whom you would like to represent you
  • Your family may not agree with your personal wishes for yourself on some issues, such as either continuing or terminating life support
  • There may be disputes in your family over how to answer some questions, and that will undoubtedly result in disputes over which person or persons has/have the right to make the decisions
  • You can help your family feel like they have made the right decision if you write it in a document for them in advance
  • A living will can often protect the doctor and hospital so they won’t be sued because they followed the wishes expressed in your living will

Living wills allow you to prevent situations such as being placed on aggressive life support. It can also help you maintain your rights to medical care if you can recover. Your rights to get pain medication, therapy, rehabilitation, or other care for your comfort are also protected by living wills.

How Do I Know What to Put in a Will?

Typical issues that would be included in a living will include:

  • CPR or Defibrillation: Whether you want doctors to attempt to restart your heart if it stops beating, whether using electric shock or compressions
  • Breathing: Whether you want doctors to take measures to help you breathe, such as putting you on a ventilator
  • Feeding and Hydration: Whether you want to be indefinitely fed and hydrated if you are in a coma or a persistent vegetative state
  • Dialysis: Whether you want to be put on a dialysis machine if your kidneys cease to function
  • Pain Killers: The type of pain management options the individual wants to be administered

How Do I Create a Living Will?

Each state has its own laws governing the creation of living wills. Most states require, just as with a regular will, that you sign the document in the presence of two or three witnesses. The signatures may or may not need to be notarized, depending on the laws in your state. In addition, there may be regulations in your state restricting who may act as a witness.

Ideally, creating a living will as early as possible is best. This will help ensure that you still have the physical and mental capacity to formulate the preferences and instructions outlined in the document. If you have been diagnosed with a new medical or physical condition, it is best to create a living will before the condition progresses to the point that you become incapacitated.

How Can I Ensure My Living Will is Followed?

Once the document is signed and formalized, you will want to make copies and distribute them to those who will need to know about your instructions. These can include people such as:

  • Family members and relatives
  • Close friends
  • Your physician
  • The medical records department of the hospital you would likely use in the event of a serious medical issue
  • If you are living or staying in a nursing home or convalescent home, or are seeing a doctor for a specific treatment, then you may want to distribute copies to them as well
  • Your attorney or legal representative

In addition, it is also a good idea to keep a card in your wallet indicating that you have a living will, and you may wish to include the phone number of someone with a copy. This will help police, firefighters, or EMTs to identify and locate the document. It is also a good idea to keep your original living will and other important documents (such as your traditional will) in a security deposit box with instructions for access when the time comes.

What If I Want to Change My Living Will?

Under the law, you are never required to update or renew a living will, but naturally, you are free to alter, revoke or cancel it at any time you choose. Generally, you should tell everyone with a copy of the living will that you want to cancel it. When you have made changes or canceled, your original living will send them a written notice to ensure it is clear.

If you need to change it for whatever reason, you may need to consult a lawyer for advice. They can instruct you on what you need to do to make the changes and have them certified to be legally enforceable. It may be the case that you may need to amend the living will or a portion of it. You will likely need the changes signed, witnessed, and notarized again.

You might want to consider updating your living will if you wish to:

  • Integrate new changes in medical technology
  • Respond to new healthcare laws or changes in such laws
  • Relocate to a new state. In this case, you must determine whether your existing living will is going to be valid in your new state
  • Change your medical care based on your ability to pay
  • Designate a new legal representative
  • Recognize changes concerning your personal health
  • Make changes based on new or different beliefs

Can I Cancel My Living Will or Create a New One?

If you cannot change the will for whatever reason, you can simply cancel or revoke the old one and create a new one. Physically destroying a living will cancel it, but it is better to revoke the will in writing so you and your friends and family have a record of that event. You can execute a new will in the same manner that you created the old living will.

Before you take any action, you should consider consulting with a lawyer, as the laws regarding living wills are different from state to state, and you want to make sure your new living will be upheld if there is a challenge to it.

Do I Need an Attorney for Help with a Living Will?

Living wills are important documents that outline the path of your life. Hiring a living will attorney to help you with your living will is best.

Your attorney can help ensure that the living will is drafted in such a way that it captures all of your wishes and also conforms with your state’s laws and requirements. If any disputes or conflicts arise in connection with the living will, an attorney can assist in resolving those.

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