Last Will and Testament vs. Living Will or Advance Directive: What are they, what are the differences, and why do I need them both?
WILL VS. LIVING WILLS: What’s the difference?
Wills vs. Living Wills, although the names sound alike, have vastly different purposes and applications. One provides for the orderly distribution of your assets while the other allows you to choose your end of life medical treatment. So, what’s the difference, and why do you need both?
(I am an attorney but I am not your attorney. Nothing in this post creates an attorney-client relationship and should not be construed as legal advice. This article is for educational and informational purposes only, and you should consult with your own attorney regarding your specific situations and state law.)
Work. Plan. Mommy. is about making estate planning simpler
Throughout this blog you will hopefully find articles that disarm you about death and incapacity planning. As an estate planning attorney, I sit down with hundreds of people each year who all share many of the same questions.
If they have those questions, then I am sure that you have some of the same ones. While I will always tell you that there is no substitute for legal advice, attorneys are notorious for using legal jargon without explaining what the words mean.
Here, on this site, I hope that you feel more comfortable as you begin or go through the estate planning process. Here, I hope that you can find simpler explanations for some of those complicated words.
Wills and Living Wills are no exception to the ongoing confusion. Many people come into my office declaring that they need a living will, when really they are asking for a last will and testament.
In the legal world, there is no comparison between wills and living wills. It’s not only comparing apples and oranges, it’s comparing apples and turnips. Sure, they both are round, but the similarities end there.
What is a Will?
A will is a document that only takes effect upon your death. No one has ANY interest in your estate, your assets, your property –your stuff – until you actually pass away. And, even then, only your most recent will prevails.
RELATED POST: Can I Change My Will?
With limited exception, you have the right to change your will at any given time. You can make additions, amendments, revisions, or even revocations to the entire document.
The will not only provides for the distribution of your stuff, but it can also provide for the legal administration of your final affairs. Taxes, utilities, auctions, medical bills…all the non-glamorous parts of collecting an inheritance.
And, unlike a living will, which I will get to in a minute, your will ONLY takes effect upon death.
You are your own master until your incapacity. At incapacity, your Durable Power of Attorney takes over, and at your end-of-life state your Living Will takes over. Finally, the moment you pass away, your will springs to life.
RELATED POST: What are the different types of power of attorney?
What your will controls
Your will only governs the assets, property, and stuff that you own upon your death.
Anything that you disposed of during life is no longer subject to your will. Items that you either spent or disposed of during life are said to have adeemed. Ademption is when the will gives away an asset that the decedent either didn’t own at his or her death or gave away during life.
For example, if grandma leaves her wedding ring to her niece, but she actually wrapped it under the Christmas tree the year before, then the wedding ring already adeemed. In other words, the will has nothing to do with it anymore.
Your will has no effect on your ability to make gifts or payments during your lifetime. And, with limited exception, making a will does not obligate you to preserve ANY of your assets.
Wills deal with property after death
As you can see, your will has nothing to do with your health, your life, or your medical decisions. Instead, wills only make provisions for the administration of your estate –your stuff, your property, and the administration of a probate estate.
Your last will and testament is not binding on you or your assets until you actually pass away. Only at death does it spring to life and begin appointing fiduciaries, distributing assets, and directing administration.
To get started on your will, check out this estate planning questionnaire.
Living wills on the other hand, have only to do with your medical decisions shortly before and shortly after death.
What is a living will?
Living will is a terribly misleading name for what most attorneys will call an advance directive. An advanced directive or living will provides your directions for how to make your medical decisions in your end of life state or dying process.
Your living will or advance directive allows you to personally tailor your medical and health treatment for your end-of-life.
It does not govern your property, your assets, your financial decisions, or even ongoing medical treatment.
An advance directive or living will only springs to life in the short time between when you are approaching death and death (or shortly thereafter if you make decisions for autopsies or organ donation).
End-of-life state
But what is an end-of-life state or dying process? Well for the most part, if the following are true, then your advance directive springs to life.
- you have an incurable illness, disease, or injury
- you will not recover, as certified by a physician
- you are in a persistent vegetative state
Serious, right? Doesn’t sound much like a will.
If the above are true, or some variation of them, then your living will makes directions about the application of artificial food, water, or other life-sustaining care.
More comprehensive advance directives can make provision for the uses and types of comfort care, treatment of underlying illness, chronic illness care, or even well-care.
By having an advance directive, you can ensure that you don’t continue to receive chemotherapy treatments in your final days of life.
With a living will, you can make sure that you do not receive antibiotics for pneumonia when you are actually dying from a stroke.
Other purposes of a living will
For many, autopsies and organ donation are deeply personal or even religious decisions. While your healthcare representative should already have directions for these decisions in your power of attorney for healthcare, your living will can also tackle these subjects.
If you vehemently oppose autopsies for religious reasons, this should be stated in your advance directive.
If you reject the uses of blood transfusions or organ donation, then this should be in your living will.
And finally, if you want to donate your body or organs to other recipients or science, this too should be in your living will. Effective donation might require appropriate preparation of your organs, and your medical staff should be aware of these decisions.
I firmly believe that every person over the age of 18 should have an advance directive or living will. However, many young people are concerned that preparing a living will could prevent them from receiving care they need.
Living wills do not govern every type of injury or accident
Unlike a power of attorney that governs your medical decisions anytime you are unable to make your own medical decisions, the living will is very specific to end-of-life.
If you are hit by a bus and need a ventilator, multiple surgeries, and a month in a coma to survive, your living will does not act like a DNR or prevent medical care. It is likely that your living will would not even spring to life in that scenario.
Remember that list from above? A medical professional would have to determine that even with medical intervention you would never recover. If a ventilator, multiple surgeries, and a month in a coma would lead to your recovery, then your living will does not come into play.
Instead, your power of attorney would govern medical decisions, healthcare, medical staff, and insurance needs.
So, now you might be asking: if my healthcare power of attorney can do all the same things, then why do I want a living will?
Because you relieve that burden from your family.
Living wills relieve pressure from your family
A living will or advance directive relieves your friends or family members from making those final hard decisions.
Your daughter might be happy to transport you from appointment to appointment and write your checks for you. However, she does not want to be the one to “pull the plug”. She doesn’t want to have to decide when it is “time”.
Relieve your family members of the responsibility of making your end-of-life medical decisions and create a living will instead.
Wills and Living Wills
Yes, having both a will and a living will is important. A well-rounded estate plan should include both. They are not comparable, interchangeable, or related.
While your will governs the administration of your affairs after your death, your living will determines your medical treatment in your dying days.
Do your friends and family a favor, and put these affairs in order before you become incapacitated. Meet with an attorney to prepare an estate plan personally tailored to your needs and jurisdiction.