All types of estate planning mechanisms have things that are or are not allowed to be included, and living wills are no exception. As with other parts of estate planning, living wills are vitally important documents. The first step is understanding what should be included and what can’t be.
What Is a Living Will?
Some wills deal with a person’s assets and belongings after their death, and then there are living wills. They only resemble each other by representing what the testator (person compiling the will) wants in specific situations. A regular will determines how the testator wants their estate handled regarding the disposition of their assets, property, etc. and who, if applicable, should be the legal guardians of any minor children orphaned by the death.
A living will is not about assets or guardianship. They play no role in this type of legal document. It’s about difficult health care decisions, often (but not always) made at the end of life. It’s meant to specify health care choices and preferences when someone is incapacitated and can’t speak for themselves. In many cases, it’s paired with a power of attorney (POA) that names someone to make those choices on their behalf.
California has a version of this called the California Advance Health Care Directive. It’s one form with both your medical choices (the living will portion) and naming someone to make those decisions if you’re incapacitated (similar to a POA). It’s not required that anyone fill out both parts–you can choose to fill out one or the other.
What Happens if I Don’t Have a Living Will?
It can be challenging to think or talk about these subjects. But if someone’s incapacitated without a living will and/or POA, their health care can become complicated quickly. In California, physicians will try to find family members, friends, or religious leaders (if applicable) to make decisions about what types of care they should or should not receive.
This is complicated because family members may disagree about which health care route to choose. When people aren’t aware of someone’s health care preferences at these times, it can lead to the patient receiving medical care they would never have chosen. If no one can be found to speak on behalf of the patient, or if they can’t come to an agreement, it’s likely the case will go to a hospital ethics committee or even to court.
What Should Be Included in a Living Will?
A living will is meant to guide health care personnel as to what you would or would not want to happen if you’re in a medical condition needing extraordinary care and are no longer able to speak for yourself. This can include specifications for measures meant to prolong life which wouldn’t necessarily increase the quality of it, including tube feeding, dialysis, mechanical ventilation, CPR, or various tests and surgical procedures.
As hard as it is to think about, this comes down to what you believe is important to you when you’re dying. Would you like your life prolonged no matter what, or are there treatments you’d rather not undergo, even if it meant you wouldn’t survive? Some people will choose the treatments, others will choose to reject them and opt for hospice care and pain management techniques. There is no right or wrong answer. This is about what each individual wants.
This is also a good time to consider other end-of-life decisions, such as whether you’d want to be in a nursing home, hospital (likely with hospice care), or at home, if possible. If a decision wasn’t previously made about organ donation, this is a good time to specify those wishes as well.
Can I Change My Living Will Once I’ve Signed It?
Yes. These types of directives, whether the living will portion or a POA, can be changed anytime before it needs to be used. There’s no limit to the number of times it can be edited. People may spend time putting together a directive, then have a change of heart about what procedures they’d be willing to have or who they think should have their POA. This is natural and normal, and every person has the right to reconsider and change their plans.
Where Can I Get Help with a Living Will?
Call us at 949-260-1400 to work with one of our experienced estate planning attorneys. Our Orange County, California attorneys are well-versed in writing wills. We know every estate is unique, and we treat each will with the respect and attention it deserves.