Why Do You Need A Living Will?
Why Do You Need a Living Will?
Most people understand what a Last Will and Testament (Will) is and why you want to have one in place when you pass away. However, many people do not understand the need or importance for a Living Will.
Your Will allows you to determine exactly who will receive your assets and possessions upon your death and who will be in charge of dealing with your estate. A Will also allows the surviving members of your family to deal with the probate process in a much faster and easier fashion and hopefully helps ease the stress and confusion of dealing with the passing of a loved one.
But why do you need a Living Will and what exactly is it?
Your Will determines, among other things, what will happen to your assets when you pass away and who will be in charge of taking care of your Estate. Your Will only goes into effect once you have passed away and generally does not have any legal effect while you are still alive. On the other hand a Living Will goes into effect while you are still alive and become disabled or incapacitated. Your Living Will can determine, among other things, who will take care of you and make medical and financial decisions if something happens to you and you are not able to care for yourself or make those decisions for yourself.
A Living Will is actually a collection of documents typically including a Medical Power of Attorney, Statutory/Durable Power of Attorney, Directive to Physicians and a Hipaa Release. Your Living Will may also contain an Appointment of Guardian in case of Need, a Do Not Recuscitate Order and other documents.
A Medical Power of Attorney will name a person or list of people who are authorized to make medical decisions for you. The Medical Power of Attorney can be made effective on the day it is signed or it can be made to become effective only if and when you become incapacitated and your incapacitation is certified by a doctor.
A Durable /Statutory Power of Attorney will name a person or list of people who are authorized to make certain financial decisions for you. The Statutory Durable Power of Attorney can also be made effective on the day it is signed or it can be made to become effective only if and when you become incapacitated and your incapacitation is certified by a doctor.
A Directive to Physicians can determine whether you wish to be kept on life support or other life sustaining treatments in certain situations or whether you do not desire to be kept on any life sustaining treatments.
A HIPAA Release will authorize certain people to have access to your medical records. This document has become much more important in recent years as doctors and hospitals are becoming more hesitant to share medical records with anyone, including family members.
An Appointment of Guardian in Case of Need will list the person or people who you wish to act as your guardian in the case that a court determines that it is necessary to appoint a guardian to care for you for any reason. This document can forestall fighting between family members to determine who should be taking care of you if the need arises.
So as you can see, A Living Will can set out clearly who will take care of you if something happens to you while you are still alive but cannot make any decisions for yourself. The example I use most in this case is if you are in some type of accident and go into a coma. At that point you can no longer make medical decisions on what type of treatment you would like, you cannot pay your bills, mortgage or otherwise, you cannot give someone permission to review your medical records or move you to a different hospital. You also cannot stop the fighting that unfortunately often erupts between family members who firmly believe that they know what is the best way to care for you but disagree with other family members.
I often explain to people that in many ways a proper Living Will is more important than having a Last Will and Testament. If you do not have a Last Will and Testament when you pass away your property and assets will still pass to your spouse and children, even though it may take more time and expense in going through the probate courts. But if you do not have a person designated to make financial and medical decisions for you in case of need then you may not be able to get special medical care as fast as you may need it or you may get into serious financial problems if no one can pay your mortgage, car payment or other bills. A proper Living Will can ensure that these issues are taken care of and protect you and your loved ones from the unexpected twists that life sometimes throws at you.
If you have any questions regarding a Living Will please contact our offices at www.murphyslawtx.com for your free consultation.