WHAT WE NEED MOST: THE LIVING WILL

By Cory Howes

coryWith estate planning, people incorrectly assume that they’re sitting down with lawyers and financial advisors to prepare for what happens after they die. But many aspects of estate planning pertain to what happens during your lifetime, such as incapacity or asset protection planning.

Also, there are certain aspects of estate planning that relate to matters that occur as you die. The living will—also known in legal circles as advance directive—is a powerful tool for controlling your ultimate destiny in circumstances of death.

Living wills are necessary to convey your wishes in a host of medical circumstances. If your wishes aren’t articulated in a living will, your family and health care providers will be unable to control these circumstances—often sudden in occurrence due to accidents or sharp decline in health—in the dignified manner you choose.  We use living wills to address the most obvious, serious issues, such as life support and DNR (do not resuscitate) measures, as well as pain management, and other key instructions to loved ones about your own comfort and theirs during the most trying times.

It’s important to note that the effectiveness of treatments varies by the individual. For example, a ventilator may provide exactly its intent for one person—helping them to sustain strength and recover from trauma—while in others simply cause the persistence of a state where the person never recovers, due to serious brain injury or organ failure.

As with any document that empowers others during or after your life, it’s important to carefully select and confer with those responsible for carrying out your wishes. Physicians and other care providers rarely fail to comply with advance directives contained in a living will, as they are most concerned with health and quality of life issues. However, we have seen circumstances where end-of-life wishes of a patient may clash with ethical sensibilities or the religious beliefs of a doctor or facility, so it’s best to discuss and eliminate any potential conflicts while everyone is happy and healthy.

The same great care in selecting the executor of your estate is required in choosing an agent that will faithfully execute your wishes when you are unable to articulate your own decisions regarding end-of-life decisions. Make sure you select someone that’s mature and strong, able to handle the pressure of these situations. It doesn’t hurt to select a family member or even a friend, known to have respect among all parties that care strongly about your health.

Furthermore, just as you maintain your other estate planning documents on a regular basis, you must adjust your living will to life circumstances.  For many of us, our spouse is without peer with regard to trustworthiness in these types of matters, but you’d obviously need to update your agent in the event of divorce or surviving the death of your spouse. Equally important is revisiting your wishes. What seemed essential just a few years ago may be unnecessary, as you’ve changed and those around you have changed. Finally, if you’ve moved to another state, you’ll need to keep that living will updated within the laws governing estate planning in your new home.

For more information on living wills and other essential documents for estate planning, contact Forrest Firm attorney Cory Howes for a consultation. We will help you navigate issues surrounding life and death, as well as your wishes in directing those who care for you in deathbed circumstances.