Do You Need a Living Will?

By Tanya Roth, Esq. on February 21, 2013 | Last updated on March 21, 2019

Did you know that most Americans don't have a living will?

A living will is not the same thing as a "conventional" will, which is a document that lays out your wishes for the disposition of your property. It can contain other "dying wishes" as well.

A living will doesn't necessarily relate to your dying wishes. It relates more to your living wishes. That's why it's called a living will.

Now, why would you need your living wishes spelled out?

Reasons to Draft a Living Will

There comes a time for some when they are not able to speak for themselves. This could be due to any form of incapacity.

Incapacity refers to the inability to make a decision or to enter into a legal contract. The idea is that one is not able vocalize one's wishes adequately.

There are many situations in which one could be deemed incapacitated. For example, in some cases, a person with dementia or Alzheimer's may be incapacitated. Similarly, a person in a coma is alive but unable to enter into any legal contracts.

While incapacitated, you may still need to address certain legal issues. That's what a living will is for -- to lay out your wishes during such a time. The word "living will" is sometimes used interchangably with "health care directive" or "health care power of attorney."

If you don't have a living will, then you might be leaving your loved ones to deal with some difficult decisions without your input.

Drafting a Living Will

A living will may designate someone to speak and make decisions on your behalf. This person has whats called a "springing" power of attorney, which "springs up" when you're incapacitated. The living will might also state your end-of-life wishes, such as when to pull the plug on life support.

You might be afraid that the living will could empower someone to act on your behalf when you're well and capable. After all, how hard can it be to get a doctor who will declare you incompetent?

No worries there. A good estate planning lawyer will help you draft your living will to address what "incapacity" means. Sometimes, you can designate a specific doctor to decide. Or, you can even designate a panel of loved ones to decide whether or not you're incapacitated.

Living wills are important, so you'll want to become more familiar with them before you dive into drafting one. Check out FindLaw's section on Living Wills to learn more.

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