Do's and Don'ts of Making a Living Will

Do's and Don'ts of Making a Living Will

by Kylie Ora Lobell, October 2019

Someday, we will all pass away. Rather than letting other people dictate how your life plays out in those last moments, you can take control with a living will.

What Is a Living Will?

A living will is a document that states whether you'd like to be kept on life support if you become terminally ill and could die in a short time without life support. It also applies if you could be in a permanent vegetative state.

Also known as an advance directive, a living will's purpose is to communicate your health care preferences if you cannot. It will stipulate whether you want a feeding or breathing tube, pain medicine or other medical treatments that could sustain your life. Additionally, a living will provides guidance to your designated durable power of attorney, who will make decisions on your behalf.

“A living will is an essential legal instrument because it communicates and instructs your wishes," says Benjamin Ross, a real estate agent who has worked extensively in probate. “It expressly gives your family or those close to you the instructions as to your care in the event you become incapacitated either physically or mentally."

Unlike other parts of an estate plan, such as a last will and testament, a living will is critical because “it takes care of you while you are alive," says Patrick Simasko, elder law attorney and wealth preservation specialist at Simasko Law in Michigan. “You need to pick who you want to make your decisions, should you become incapacitated."

Before you start looking into a living will, you'll need to know the do's and don'ts of creating one. The following items are often overlooked, but should be a crucial part of your planning.

Alternate for a Durable Power of Attorney

Simasko says you should pick at least one alternate to hold your durable power of attorney. “Why? Because your first choice might die before you," he says. “If you pick your husband to make your decisions and he dies, you don't have anyone to do it for you. At that point, the family would need to go to probate to have a guardian appointed."

Death of a spouse isn't the only thing to be concerned about. Ross says that someone holding a durable power of attorney may decline to make decisions for you, perhaps because they have problems with the family. “If [the holder of your durable power of attorney] isn't available, the court will appoint one. I'm not so sure you would want that. It is always a good idea to be prepared and plan for the unexpected," he says.

Updating Your Medical Contact Information

You may fill out your living will and then forget all about it. But what if your medical contact information changes? It's important to update this information at least every five years, or as circumstances or laws change, Ross says. Simasko adds that you should update it if your treatment philosophies change or you want to update who is in charge of carrying out your living will.

Including Medical or Religious Beliefs

Sometimes your medical or religious beliefs impact your treatment philosophies. If you want to include them, do so, “if you consider it important for the attorney to know," says Diana Tebby, a lawyer at Mann Lawyers LLP.

Simasko says these beliefs should be included, “Only if they affect how your advocate would act, such as Jehovah's Witnesses do not want blood transfusions. Certain religious organizations have specific language you can incorporate into your documents."

Ensuring Your Directives Are Followed

Putting together your living will and then filing it away is not enough. You have to be sure that you executed the document legally and correctly, notes Ross, with the power of attorney and possible alternates in place.

You also need to keep communication open with whoever holds your power of attorney and your loved ones. “I think the best [thing] is to have the family meeting to explain what you want," Simasko says. “Everyone wants to do what their parents want; they just need to [be told]."