What is a Living Will?
We are frequently asked, “Do I need a Living Will?” Our usual advice is no.
Although the word “will” is in the name, a “living will does not distribute property after your death. Instead, it used to plan for your incapacity. A living will provides instructions on whether you wish to withhold or withdraw life prolonging procedures when you are too ill to communicate. Life Prolonging procedures include, but are not limited to:
- Artificial respiration
- Blood transfusion
- Intravenous feeding or medication
- Feeding tubes.
A living will only takes effect if you have an incurable or irreversible medical condition that will result in death. A physician must determine you have a terminal condition, and record the determination in your medical record. For all other cases of incapacitation, a Power of Attorney for Health Care or Mental Health Treatment Preference Declaration is needed.What are the benefits of a Living Will?
A living will is a simple document that is easy to execute. It can protect your family from having to make tough decisions regarding your end of life medical care, while protecting the value of your estate. When you are incapacitated with a terminal illness, the choice of whether provide life support is exceptionally burdensome on your family. Whatever decision is made, it will forever weigh on that individuals conscience for the rest of their life. Even if you have mentioned in passing your preference for life-support, your wishes may not be followed. With a living will, you can assure your wishes are followed while saving your family from the emotional turmoil that comes with making such a major decision.
Additionally, the cost of life prolonging medical care can accumulate quickly, and usually goes unnoticed because of obvious circumstances. The price of a single day of life support can be as low as $1,500, and higher than $5,000 depending on your condition. With every day, the total cost to your estate grows. The longer you are on life support, the less you will be able to distribute upon your death; it is not unheard of for sustained life support to destroy the value of an individual’s estate. If you choose to withhold life support, a living will can help protect your estate’s value, ensuring the safety and future of your family after your death.CAUTION: A Living Will Is A Product of The Past
Although a living will provides some protections, it has many short comings. The Living Will came into existence prior to the creation of Powers of Attorney for Health Care, which is a much more complete and encompassing document for end of life treatment, and incorporates all the powers of a Living Will. For instance, under a Living Will the determination of an “incurable or irreversible medical condition that will result in death” can only be determined by your physician. You cannot assign or designate anyone to make the decision to remove treatment, it is only a directive which informs the physician of your wishes. This means that your treating physician has complete control over when your Living Will can take effect.
Here’s why that is important: A LIVING WILL CANNOT FORCE THE REMOVAL OF LIFE PROLONGING TREATMENT, it can only prevent its implementation AFTER there has been a determination that you have a terminal condition. If you have been placed on a feeding tube, the feeding tube cannot be removed even if your Living Will states you do not wish to have one used.
As experienced Chicago estate planning attorneys we strongly recommend that our clients use a Power of Attorney for Health Care. Read more about a Power of Attorney for Health Care HERE.