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The Gift of a Living Will

Posted On December 4, 2020

Where there's a Will, there's a way - which Will, though?

BY Susan E. Gregory

What comes to mind when you hear the word "Will"? Do you think of willpower, the sheer willpower it takes a hiker to ascend Grandfather Mountain? Maybe you smile thinking of goodwill toward others or that friend of yours with a strong-willed character? Perhaps, you recall hearing whip-poor-will, chanted for hours on end, on warm summer nights in the countryside? 

When asked what you want to leave your loved ones when you die, do you think about making a Last Will, and if you already have one, do you strain to remember the last time you reviewed it? 

How comfortable are you with making medical decisions for your loved ones? Better yet, how satisfied are you that your loved ones will honor your wishes should you be unable to advocate for yourself? 

Now, what comes to mind when you hear the word, Will?

Do you wonder whether you need a Living Will, and could you find it if you have one?

Do you know the difference between a Last Will and a Living Will?

That "last" part is easy if you keep in mind that a Last Will takes effect when someone dies, not before. It is their last Will. A Living Will takes effect during one's lifetime and extinguishes upon death.

So, what exactly is a Living Will? 

A Living Will is a stand-alone document coupled with a health care advance directive. Some states refer to an advance directive as a medical or health care power of attorney. The health care agent, or alternates, you choose are named in your advance directive. The persons named are often referred to as health care agents, attorney-in-fact, proxy, surrogate or patient advocates. They mean the same thing. The document establishes their authority to make medical decisions on your behalf. 

A Living Will clarifies what medical treatments you do or do not want administered to keep you alive. It can include pain management, as well as organ donations. However, most organ and body donations require an additional step. Still, your Living Will can guide your loved ones regarding how you want your organs and body donated if those options interest you. It is counterintuitive to sign for what you do not want to happen. However, in the case of a Living Will, you must sign or initial that you do not wish to be kept alive by artificial means. 

A Living Will has a narrow scope. Life support machines alone do not define the scene. One must be on life support while also having an underlying condition that indicates the patient would not survive without artificial life support. For instance, a person could be injured in a car accident, placed on life support, and expected to recover. This is not a Living Will scenario. Fear not! Your health care agent will not have to guess or decide when the document applies. Your physician will determine when to consider carrying out your Living Will while your health care agent enforces it. Thus, it is critical to discuss your values and wishes with your health care agent and alternates. A conversation with them now will help reduce confusion or disagreement about the choices you would want them to make on your behalf.

I'm an Elder Law Attorney licensed in Florida. I have been helping people with their estate plans for over 12 years now. Let me leave you with a powerful story that illustrates the importance of talking with your loved ones about when to continue, or stop, treatments that extend your life. 

While meeting with clients in my conference room, the conversation turned to the difference between a Living Will and Last Will. As I explained the health care agent's role versus a personal representative, the wife would cry. I kept going, not understanding her emotions, but switched to referencing myself instead of one of them. Each time I talked about artificially prolonging my life during a hypothetical scenario, the husband declared aloud: "pull the plug," and the wife would cry. She said she could not do it. As I held her hand, I praised her courage for speaking up. I reminded them both that it is a blessing to discover her hesitation now and not when faced with a life-threatening situation. I know most like to avoid talking about death. Still, by respecting each other's viewpoints, the couple learned the value of giving each other permission to choose the best person to serve as their health care agent and make any life and death decisions. I often advise my clients that it is best to select an agent who is willing and able to fulfill the role. To reassure her, I reminded her the purpose was to honor her husband's wishes, but she cried some more. Finally, it became apparent that she did not want the role, and the two agreed to nominate their adult daughter. In the end, both the husband and wife expressed gratitude that they had made the right choice, and they could focus on being there for the other if their Living Will became necessary.

Think of a Living Will as a gift to your loved ones and yourself. It allows others to know your wishes and makes your medical care more manageable. Most importantly, it relieves your loved ones of decision-making burdens during moments of crisis or grief.