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FAQ: Probate & Estate Administration

What is the Purpose of a Living Will?

A living will allows you to legally document your preferences for the types of medical treatments you would or would not want if you become unable to communicate those decisions for yourself.

You can leave instructions about the types of life-saving and life-extending measures you want taken in certain situations. For example, if you were in a car accident and were declared brain dead, would you want life support?

However, it is usually best not to try to list out every possible scenario you can come up with in your living will. It is unlikely you will be able to provide instruction for every situation that may arise. Rather, it is best to provide general instructions to your loved ones and medical providers about your wishes with regards to receiving artificial hydration and nutrition through a feeding tube, artificial respiration and other life-saving measures. You should communicate not only the quantity of life you would like, but also the quality of life you want. Would you want your life saved no matter what? Would you want to be kept alive if you were in a persistent vegetative state with little to no chance for recovery?

It is a good idea to execute a durable health care power of attorney at the same time as you prepare your living will. Some states may refer to this as a health care proxy, advance directive, power of attorney for health care or other name. Under most state laws, a living will does not come into force until one or more doctors make the determination that you are medically incapacitated. A durable health care power of attorney, on the other hand, can come into force whenever you are unable to make your wishes known — whether it is temporarily because of an illness or accident or permanently.

You should appoint someone you trust to do what is in your best interests as your durable health care power of attorney. It is important that this person understands and respects your wishes, and if the time comes to make difficult choices, will make those choices with you in mind. Your living will can act as a guide for the person you select for this important role.

If you do not have a living will or durable health care power of attorney, your doctors and family will have to make these decisions for you. It can be very difficult for family members to let loved ones go, even when it is the right thing to do. The stress from the situation can lead to disagreements over what to do. Your doctors will defer to your family's wishes. While you may not be able to make such a time easier for your family, you can help decrease some of the stress if your family knows and understands in advance what you would have wanted.

The requirements for valid living wills and powers of attorney can vary by state. To make sure that you meet your state's requirements for executing a valid living will and durable health care power of attorney, contact an experienced estate planning attorney in your area.

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