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Wills and Living Wills

Estate Planning With Wills

Most people know about wills and their basic purpose – to ensure that one's hard earned assets go to the right beneficiaries when an individual passes away. However, wills can be used for a lot more than simply dictating who gets a person's antique lamp collection. Here's a list of some of the very valuable things a will can do:

  • List who gets what. The most common purpose for a will is to name which individual, or group of individuals, will receive particular property belonging to a person when he or she passes away.
  • Name guardians for children. Typically, a will is the document that states who should raise a person's children if something happens to the parent. The will also usually contains at least one alternate in the event the first choice cannot serve.
  • Establish trusts. In many cases, a person may not want a child or loved one to receive all of the property that they are inheriting at once. Or a person may want the beneficiary to be able to use the property for a while, and then for it to pass on to someone else. In that situation, an individual may choose to use a trust. A trust holds property on someone else's behalf. In wills, trusts are commonly established for minor children, so that someone else can manage the children's money until they reach a certain age when their parents believe they will be able to manage it. Trusts are also commonly used in second marriage situations – a person may want to allow a spouse to have access to certain property while the spouse is living, but for that property to ultimately pass to the decedent's children. Trusts can help accomplish that goal.
  • List funeral wishes. Although this is also done in other documents too, a will commonly states whether an individual wants to be buried or cremated, and where the body should be buried or the ashes should be spread. Sometimes, wills contain other information about funeral wishes too like where it should take place and even what readings might be recited.
  • Tax planning. Wills can be great tools for tax planning in order to avoid federal or state estate or inheritance taxes. This can sometimes be accomplished by setting up various trusts.
  • Naming executors and trustees. A will usually states who will be the executor of an estate, which is the person who will carry out a deceased individual's wishes listed in the will. Wills can also name the trustee of any trusts established in a will, which is the person who will be in charge of carrying out the instructions of the trusts.

While wills can serve as powerful estate planning tools, they are only effective if they are properly drafted to suit the needs of each individual. An estate planning attorney can review all your options with you and establish a will in a manner that ensures your wishes will be honored.

Living Will

Living wills, also known as medical or advance directives, are legal documents that provide future instructions in the event of a serious medical emergency (e.g., incapacitation or disability), such as an individual's preferences for medical treatments and/or procedures. Living wills differ from their traditional counterparts, which are typically used to leave real and personal property to their loved ones after they are deceased.

Similar to traditional wills, living wills are often created in advance of a serious medical situation. However, unlike traditional wills, living wills are concerned with a person's present living conditions and not what happens to them or their belongings after they die. 

For instance, a person who has a serious illness may draft a living will to provide instructions regarding legal and medical decisions should their illness progress and place them in a situation where they become incapacitated like a coma.

Accordingly, living wills usually assign a person to take over as the testator's representative who will need to make decisions on their behalf should such an occasion arise. Depending on where you live, this type of representative may also be referred to as a: 

  • Patient advocate;
  • Health care proxy;
  • Health care agent; 
  • Health care surrogate; and/or 
  • Various other titles. 

Regardless of what a designated representative is called, all of the above terms essentially describe a person who is legally permitted to make legal and/or medical decisions on your behalf should you find yourself in a situation where you are unable to do so for yourself. 

Difference Between Living Will and Last Will

Other than the fact that a living will and a last will serve different purposes, another major difference between a living will and a last will is when they take effect. A last will and testament doesn't take effect until after the person's death but a living will comes into play while the person is still alive but incapacitated.

What Belongs in a Living Will?

The primary purpose of a living will is to provide explicit instructions regarding the testator's preferences for medical treatments and procedures in the event they become incapacitated. As discussed above, such instructions are referred to as either advance directives or medical directives because they are used to “direct” the person who has been designated as the testator's health care proxy on how to proceed with their medical treatments.

Basically, the appointed health care proxy will be legally obligated to obey the testator's medical directives and any other instructions provided in the living will document. In general, advance or medical directives typically address a testator's preferences regarding the following types of decisions:

  • Whether they want to donate their tissues and/or organs;
  • If they would be willing to undergo tube feeding if their condition worsens;
  • Whether they consent to having emergency surgery if such a scenario should arise; 
  • The various types of medicines and/or injections they would be willing to take;
  • What to do if the testator is in a coma for a prolonged period of time; and/or 
  • The testator's preferences when it comes to life support and resuscitation issues.

As is evident from the above information, it is important that a living will contain extremely detailed instructions regarding the testator's medical preferences since they concern such delicate matters that may be difficult for a person other than the testator themselves to decide. 

In addition, one last reason as to why a person should provide detailed instructions in a living will is if some of their decisions are associated with specific cultural, religious, or individual preferences. No one other than the testator will be able to express such desires. Therefore, it is crucial that a testator appoint someone who is familiar with and willing to carry out their decisions and desires. 

Contesting a Living Will

Living wills must contain instructions that are both clear and unambiguous to prevent potential disputes from arising in the future. However, there are some scenarios in which it may not be possible to avoid a conflict that involves a living will document. For instance, similar to traditional wills and legal contracts, a dispute could potentially emerge over the meaning of a particular term or phrase used in the document. 

A living will could also present legal challenges if there have been advancements in the medical field or with technology that have changed since the time the living will was initially created and now affect its current contents. Although this problem could easily be cleared up by amending the existing living will, it will not be so easy to make those modifications if the creator of the living will is already incapacitated. 

Some other conflicts that may come up in connection with a living will include: 

  • Medical procedures that are performed against the desires expressed in a living will; 
  • Decisions regarding medical treatment or procedures that violate federal, state, or local laws (e.g., “do not resuscitate” regulations); and/or 
  • Unauthorized actions taken by the individual appointed to represent the creator of the living will. 

Regardless of the reason that causes a living will dispute to arise, the interested parties may find that the only way to resolve such a conflict is to file a claim with the probate court. This way a judge will be able to review the document and can decide what the corresponding remedy should be that would settle the dispute in question. 

In such scenarios, a court may also be asked to intervene when the parties need help interpreting the instructions provided in the living will or figuring out the intentions of the document's creator. 

Accordingly, it may be in a person's best interest to retain a lawyer when drafting a living will. Hiring a lawyer to draft a living will can help ensure that its terms are clear and that the document is legally enforceable. A lawyer will also know which types of provisions to include in order to avoid or prevent future lawsuits, such as:

  • The requirements for what should happen in the event of a legal dispute concerning the living will's instructions; 
  • The name of the next beneficiary or beneficiaries in line if something should happen to the current designated health care proxy; and/or 
  • The proper steps to take if the appointed representative ignores the wishes expressed in a living will or acts in some other unlawful manner.

Finally, since a living will also permits a designated health care proxy to make legal decisions on behalf of the living will's creator, a lawyer will know how to explicitly define and incorporate the proper details in describing the scope of a proxy's full authority. This could potentially reduce the chances of a future dispute because it will be harder to contest a proxy's actions if their instructions are fully explained in the document.   

Common Disputes over Living Will Forms

Using a living will form can often be helpful, but you should be aware of some common disputes associated with standardized forms and living wills. These can include:

  • Unclear instructions regarding life support, resuscitation, and other medical issues.
  • Unauthorized actions by the person chosen to represent the creator of the will.
  • Medical procedures performed against the written terms in the living will.
  • Actions or decisions that violate state or federal laws.

It's important to have a qualified attorney review any documents used in the creation of a living will. This can prevent potential conflicts or disputes from arising in the future.

Legal Disputes over Living Wills

Legal disputes over living wills can often be handled in a court of law. A judge may review the living will document to determine what the person's actual desires and preferences were based on the writings. For instance, a dispute regarding medical procedures can often be clarified by examining the terms written in the will. In some cases, a damages award may be issued for losses.

How Can A Lawyer Help Me With A Living Will?

Issues concerning living wills can often be difficult to manage without the help of someone who has legal knowledge. Part of the challenge stems from the fact that the contents of a living will involve many sensitive subjects, such as a loved one's medical instructions. This type of information can add a stressful emotional component to an already complex legal matter.

Aside from sensitive subjects, the other main issue with living wills that may explain why they present such complicated legal challenges is due to the fact that the creator of the document (i.e., the testator) may already be incapacitated by the time a dispute arises. This means that not only will the testator not be able to express their true intentions, but also that the parties to a dispute will also not be able to ask the testator questions about their intentions either. 

Thus, it is crucial that a living will is drafted with very clear and specific instructions. As such, the best way to ensure that a living will is clear and legally enforceable is to hire a local estate lawyer for further guidance. An experienced will lawyer can assist you in drafting, editing, and reviewing a living will document. Your lawyer can also help you modify the terms of a living will if there is one that is already in existence. 

In addition, your lawyer can offer legal advice about the relevant state and local statutes that could potentially affect the terms of the document, as well as can provide representation in probate court should you be asked to make an appearance. 

Lastly, if you have recently moved and believe that your living will needs to be updated, revoked, or changed, you should hire an estate lawyer near you immediately since the laws surrounding living wills vary widely from state to state. Accordingly, your living will must reflect and comply with the laws in your new jurisdiction.