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Living Will
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A living will is a legal document you can create to express your wishes in the event that you are incapacitated or dead. By incapacitated we mean not able to do what you are usually capable of doing because of a medical condition that has affected either your physical or mental well-being, or both. This includes dementia or a chronic mental health disorder.

Ironically, the term “Living Will” is misleading because it’s a legally-binding document that speaks for you either when you are dead or where you are “as good as dead” because you are permanently incapacitated. A living will is also called a healthcare directive or advance directive.

Why is a Living Will important?

Basically, it lets loved ones and healthcare practitioners know your wishes for medical care at any point when you can no longer speak for yourself. It’s most useful as a binding document that frees your loved ones or your medical care team of having to make a final decision on a condition that might involve some legal wrangling.

More commonly, this might involve turning off a life-support system or not resuscitating you, even if it could prolong your life. Many people fear being left in a vegetative state that’s undignified and financially draining while loved ones or doctors argue over whether or not to keep you going or let you go.

Without a Living Will, major disputes often turn into lengthy battles and do irreparable damage to relationships. Sometimes these disputes end up in a courtroom which is costly and traumatic for all concerned.

How do I create a Living Will?

You can draft a Living Will yourself or download a form online as long as it complies with laws of the state you live in. If your requirements or wishes are simple and you know what medical issues might arise, it can be a simple document that covers the basic issues.


Do I need to use a lawyer to draw up a Living Will?

People typically use a lawyer to draw up a Living Will if it’s expected whatever issue has to be dealt with will be contentious. This might be on religious grounds, financially motivated or where family members have very differing views on a person’s right to die with dignity.

Some states require a Living Will to be notarised by a notary public. This person is responsible for confirming the validity of your identity document, noting that you have signed your Living Will of your own free will and witness signatures.

What does a Living Will cover?

A Living Will can have as little or as much detail as is needed. It usually covers palliative care and certain ‘extraordinary measures’ such as cardiopulmonary resuscitation (CPR). In other words, what medication you wish to have to decrease pain and suffering, and whether you want to or don’t want to be resuscitated in certain circumstances.

Typically, there are two parts to a Living Will:

  1. Whether or not you want medical treatment that will artificially prolong your life; for example, chemotherapy, life support, pain relief in the form of morphine etc.
  2. What to do in the event of your death; for example, should an autopsy be performed and should you be buried or cremated?

It helps to be fairly specific to avoid any unnecessary disputes between loved ones and a medical team. For example, you might wish to have some pain relief during the palliative care stage but not morphine.


Living Wills before and after you die

While you are alive, a Living Will can be revoked at any stage. It takes effect as soon as it is notarised or, in some cases, only when it has been decided that you can no longer communicate your wishes about treatment options. Medical practitioners still rely on personal communication with loved ones but a Living Will stands if a dispute reaches a stalemate.

After death, a Living Will gives power of attorney to a healthcare agent to carry out your wishes. This may include whether an autopsy is performed and if your organs are to be donated. A healthcare agent only has power of attorney for a short period of time, until such time as your wishes have been carried out.

What is the difference between a Living Will and a Last Will & Testament?

A Living Will is a statement of how you will be treated leading up to and upon your death, where you may be receiving palliative care, be on life support or physically or mentally incapacitated. A Living Will is legally binding while you are still alive and immediately upon your death.

A Last Will & Testament dictates how your assets will be distributed on the event of your death. A Last Will & Testament only becomes legally binding when you are formally declared deceased.


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