According to a recent survey conducted by LegalZoom, just 41% of Americans had a last will and testament, and only 9% had a living will.
Death isn’t something anyone particularly wants to think about or plan for, but it’s essential for your loved ones to know what to do if the inconceivable does happen sooner than expected.
Both a last will and testament (often referred to simply as a will) and a living will serve as a final plan for financial and other details at the end of life. The key difference is that while a will doesn’t take effect until the subject’s death, a living will takes effect when the subject is medically incompetent to manage their own affairs, including medical care and personal finances.
The most important feature of a living will is a determination of what medical procedures to use, or not use, to prolong one’s life. For example, while it may be possible to add months or even years to one’s life in a vegetative state or coma using a feeding tube, respirator, and other medical technology, not everyone wants to go through that, and one can choose a more natural death.
Another declaration that can be made in a living will is selecting a caregiver, allowing you to designate your partner or a particular family member to be in charge, instead of leaving a grieving, panicked family fighting over who’s in charge of your finances and treatment.
In certain cases, a living will can also be used for inheritance, especially of real estate, or handing over a family business, where having immediate continuity instead of assets being locked up in probate can be crucial.
While it is a legal document, a living will does not need to be filed in court, or necessarily require a lawyer’s participation to create. What is important though is to ensure that you have multiple, identical, notarized copies of it made, in order to avoid conflict.
The original should, like most important documents, be kept in your safe deposit box. A copy should remain at home in case of emergency, and one in your car’s glove compartment, clearly marked so EMTs can find it, especially if your living will includes a DNR (do not resuscitate) clause.
It is also a good idea to give copies to, and discuss your wishes with, any family members named in the document and/or likely to be involved in your care in the case that it is necessary.
Your lawyer, your financial advisor, and your primary care doctor should definitely have copies as well, as they are likely to be involved in the execution of a living will.
This may seem like a lot of work to do now, but or a depressing thing to think about, it’s better to have it and not need it than need it and not have it, especially if you have strong opinions on your end of life care or a family business on the line.
