A living will and a last will and testament are both wills, so on the face of it there doesn’t seem to be a lot of difference. But they are different – with very different purposes and taking effect at different times. For example, a living will declares your wishes concerning life support in the event of severe incapacitation (such as coma or persistent vegetative state) when you are unable to communicate those wishes. A last will and testament, on the other hand, is an instrument for ensuring that your assets are distributed according to your wishes after your death.
A living will, broadly speaking, dictates your wishes in the event of incapacitation or a terminal condition. It is designed to make your wishes clear before you are unable to make or communicate these weighty decisions yourself, thus lifting this burden from your family members.
A living will, then, is a legal document containing advance directives concerning your medical care wishes to be carried out if you are rendered unable to make your won decisions owing to terminal illness, dementia, coma, or severe injury. It is designed to provide legal guidance in your care for doctors, caregivers, and other medical personnel.
In most cases, a living will appoints a designated person (or persons) to make the decisions about your medical treatment – without having to get court approval. In addition, the trend now is to include more than your wishes concerning medical treatments. Many living wills now also spell out desires about pain management, grooming preferences, and funeral plans.
The fundamental purpose of a living will is to lift from your family the burden of having to make difficult decisions about your medical care. So it is, essentially, an act of love.
The most common and most critical issues a living will deals with are those concerning resuscitation and intubation. For example, do you want to be resuscitated if your heart stops beating? Do you want to be tube fed if you can no longer eat? So a couple of the major components of a living will are the do-not-resuscitate (DNR) and do-not-intubate (DNI) clauses.
These are important decisions. So be sure to discuss them with your family and friends, your doctor, and your attorney ahead of time.
Also, a legal document, a last will and testament deals with the assets – real estate, cash, stocks and bonds, vehicles, and so on – that you leave behind. Without a will when you pass, you are termed intestate. In this case, your assets will be divided (usually among closest family members) according to the dictates of state law. But with a will, your assets will be divided and distributed strictly according to your wishes after you pass.
Another important component of a will is the naming the person(s) to serve as guardian(s) for your minor children if you have any. A will can also designate the person you want to oversee everything throughout the probate process. Just be aware, though, that while you can name an executor, the probate court has the final say on this matter.
To recap, then, here are the main differences between a living will and a last will and testament:
LAST WILL AND TESTAMENT
A well-crafted living will states clearly and fully what you want and do not want when you can no longer make your own decisions while you are still alive. A last will and testament lays out how you want your assets distributed after you’re gone. Either way, it’s a good idea to prepare for the worst now or the inevitable now. At Legacy Law Group of Northern Virginia, we specialize in the areas of living wills, power of attorney, and state planning. Contact us for more information.