Do I Need and Will or a “Living” Will?

A client asked me this question yesterday and it occurred to me that it might be good content for a blog post. It’s actually a topic that I am more familiar with than I wish.

In January 2016, my good friend and former law partner suffered a sudden cardiac arrest while out to lunch with a friend. His heart stopped beating, which means oxygen stopped flowing to his brain, and he fell out unconscious right in the middle of the restaurant. Miraculously, he survived, but he was in a coma for several weeks. During this time, his health went downhill. He was still alive, but he couldn’t communicate, and we had no idea if he was going to survive.

Last Will and Testament (“Will”) vs. Living Will

This is a good point in the story to break and explain what a Will does. It’s a generally familiar concept: a Will is a legal document tells the world who you are, who your family is, and what you want done with your things when you die. In order to be valid, your Will must meet strict legal requirements. For most people, a Will is the keystone step in creating a plan for how their ownership in property will transfer to someone else once they’re gone. [1]

A “Living Will” on the other hand is totally different. The legal terminology is “Advance Directive to Physicians” or something similar, depending on your state. First and foremost, a Living Will has nothing to do with ownership of your property and everything to do with ownership of your treatment. Your Living Will tells your doctors how you want to be treated in a potential end of life scenario. Let’s go back to the story for some clarity:

So my friend was unconscious and in ICU, but he was still alive, at least for now. This is an important distinction between a Will and a Living Will. A Will is only effective after you die. A Living Will is only effective while you are still alive, even though you may be on the ropes medically. Besides being unconscious, my friend needed a breathing machine to help him. This went on for days and days and eventually, a “care conference” was convened to discuss whether to keep treating him in this condition, or if it was time to let him go. Now, imagine your family gathered at a conference table with doctors, hospital admin, patient advocates, and lawyers, discussing your care. Notice who’s absent? YOU! You’re not there because you’re sick, unconscious, and on life support. Who is there speaking for you?!

The Living Will, that’s who.

With a Living Will, you make the decision about your treatment before it comes down to that meeting. The document gives you a seat at the conference table. It is your voice speaking about your treatment preferences.

So, to answer the question, Do I need a Will or Living Will , the answer is “Yes”. Even though the names are similar, they actually accomplish very different but important planning objectives.

[1] Discussions about Will vs Trust planning is outside the scope of this article. The point is, you need a plan for how property will be transferred at your death.

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