Questions & Answers on the Importance of a Living Will: What is a Living Will and Should You Have One?

A lot of people are thinking about preparing a Will because they are concerned about the current public health crisis.  There is often confusion about the difference between a “Will” and a “Living Will”.

A Will is a legal document which directs what happens to a person’s assets after they die, but a Living Will is a legal document which directs the types and duration of treatment, such as artificial nutrition, he or she would want to receive if ill and unable to communicate their wishes at the time of treatment.  The following set of questions and answers will help you understand how a Living Will works and the importance of having one.

Do I need a Living Will?

If you do not have a Living Will, the decisions made regarding types and length of treatment given to you may become a dispute between family members and doctors, and could result in the need for judicial proceedings to determine your wishes.  Having a Living Will increases the chances that the decisions made regarding your care will be consistent with what you want.

Do I need a Living Will if I already have a Health Care Proxy?

A Living Will is different from a health care proxy.  It does not appoint an agent to make your decisions.  It serves as a way to express in greater detail the types of decisions you would want your health care proxy agent to make.

What kind of wishes should I address in my Living Will?

You should address whatever is important to you regarding your health care decision making.  For example, people often describe their wishes regarding the administration of artificial hydration and nutrition, their religious beliefs regarding illness and death, and their thoughts regarding physician assisted termination of life.

How does a Living Will become valid?

There are no formal requirements for executing a living will.  It is suggested that to be sure your Living Will constitutes “clear and convincing evidence” of your wishes, you should put your desires in writing, and sign and date the document in the presence of two witnesses and a notary.

Should I keep my Living Will in a safe?

An original Living Will need not be kept in a safe, but it should be kept in a secure location known to health care proxy agent.  Copies of your Living Will should be given to your health care proxy agent, the successor agent (if any), and your medical providers.

Can I change my Living Will?

Yes.  A Living Will can be revoked or amended at any time.

What if I need a Living Will prepared?

The experienced estate planning professionals at the O’Connell and Aronowitz office nearest to you would be happy to assist you in drafting your Living Will.  You may contact Matthew J. Dorsey, Esq. of our Trusts and Estates Department at mdorsey@oalaw.com