10 Things to Consider with Living Wills


Deciding whether or not to create a ‘living willing’ is a hot issue at the moment. The following are 10 things you really need to consider when deciding whether to make a living will:

The Living Will Document

1. Although a living will is a legally binding document that sets out your wishes should you become permanently ill, unconscious, or require emergency medical attention, living wills are not enforceable at federal level, but rather at state-level. As a result, while it is likely that your wishes will be respected in all states, the living will is only ‘enforceable’, per se, in the state by which it governed. Which is to say, if you cross the state-line and then have an accident, the law is gray on whether or not it binds those in the state you are in. As such, if you move states, you’ll need to rewrite your living will.

2. There are certain circumstances under which the terms of a living will can be legally void. Notably, the exceptions to the desires of a living will apply in cases where a woman is pregnant – when the directives of a living will do not need to be followed.

3. A living will cannot be revoked by anyone but you – unless you have another legally binding document that appoints someone as your legal guardian. So, if you have a living will in place, and are considering giving a power of attorney to someone to be your guardian in certain circumstances, check out what the ramifications will be on the status of your living will.

4. Although called a ‘living’ will, the terms of a living will do not normally become effective until such time as one of the events set out in the living will are trigged, such as you unconscious state.

5. A living will cannot be used to legalize euthanasia. In other words, you cannot set out in your living will that you want someone to give you a heroin overdose if you become unconscious.

6. A living will, in conjunction with a “Healthcare power of attorney” can be used to withhold medical attention – such as a refusal to be feed intravenously. But, as mentioned in 5 above, it cannot be used to request a particular type/form of medical attention.

7. While living wills are legally binding documents, they can be trumped by other legally binding documents you sign. Most notable, if there are any discrepancies between a living will you have executed and a healthcare power of attorney you have executed, the healthcare power of attorney will have precedence over the living will. As such, if you do happen to have multiple agreement, especially if you have more than one living will executed, but under different jurisdictions, make sure the terms are the same.

8. Any ‘competent’ person who is over the age of 18 is allowed to execute a living will. Note, however, that in order to become effective your living will needs to be witnessed by at least two witnesses, who themselves are both competent and over the age of 18. The witnesses cannot (a) be immediate members of your family; or (b) be beneficiaries under your estate; or (c) be responsible in any way, even as employees (such as, be employees of your health insurance company), for taking care of your medical treatment bills should one of the events in your living will be triggered. Whether or not you could be considered competent when you made the living will is one area for appeal of a living will – so if you happen to have fallen ill and wish to make a living will to cater for your needs during your illness, then make sure you get your doctor to testify that you were competent at the time you made the living will.

9. Prior to your living will becoming effective, a doctor is required to examine you to determine if your condition fits those set out in your living will. Therefore, even if unconscious or incapacitated, the wishes of your living will are subject to the diagnoses of a doctor. If you wish to avoid this, you may need to consider issuing a healthcare power of attorney.

10. Before issuing a living will, discuss the terms of the living will with your attorney so as to determine the effect it would have on your overall estate planning. Although entirely possible, it is not recommended that you simply purchase and download a standard form living will form or template from the internet without discussing this with your advisors.

Finally, in order for the terms of a living will to become adhered to, someone other than you needs to know of its existence. What’s more, it would be extremely beneficial if this was someone close to you. So, should you want to make a living will, although possibly tough, do talk through your decision with all of your immediate family members.

Categories Law & Legal

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