The Role of a Living Will in Your Estate Plan

Creating a solid estate plan involves more than distributing assets and property. One must also consider one’s healthcare and end-of-life care preferences, especially in case they are incapacitated or unable to communicate their wishes later on. To mitigate this, a living will ensures one’s wishes are honored. 

However, not all individuals understand what living wills are and what they can do. This guide explains the function and purpose of a living will, its implications, and the legal considerations.  


Understanding the Purpose of a Living Will

A living will is a legal document allowing a person to specify their wishes for medical care. This takes into effect when the principal is unable to make decisions or communicate their medical wishes. It is also known as an advance directive and only covers medical life-threatening conditions. 

Any adult can draft a living will, but it is best handled by a trust and wills lawyer to ensure it is properly filed and enforced. A living will is recommended especially for:

  • Patients diagnosed with a terminal condition
  • Those who want to specify which medical treatments they want to receive in case they are incapacitated
  • Those who are about to undergo high-risk medical procedures or hospitalization
  • Older adults with declining health

If a patient does not have a living will or a medical power of attorney, their spouse or immediate family members will make medical decisions on their behalf. In some cases, the patient’s family may not be aware of what the patient wants and may also opt not to follow their wishes. Living wills prevent these instances and ensure medical professionals follow the patient’s wishes. 

Individuals can seek a trust and wills lawyer to draft a living will. It is recommended that they have a comprehensive estate plan with a traditional will and a living will. This ensures that their assets and medical care are secure when incapacitated. 


Clarifying Healthcare Preferences

A living will is a roadmap for healthcare decisions, providing clarity on life-sustaining treatments. Through a living wills lawyer, individuals can plan for medical situations, such as the following examples: 

  • Terminal Illness: Patients can provide a living will whether they will accept all, none, or some life-sustaining treatments, such as artificial ventilation, feeding tubes, or CPR. This indicates whether medical professionals should pursue aggressive intervention or provide palliative care for a comfortable end-of-life. 
  • Vegetative State: In case a patient falls into a coma or is in a vegetative state with unlikely chances of recovery, a living will indicates if they should continue life support.
  • Dementia: If a patient has a family history of dementia or is at risk of developing dementia, they can draft a living will indicating their preferences for care, restraints, nutrition, and other practices. 
  • Chronic Conditions: Patients with chronic debilitating conditions may indicate their preferences for pain management, hospice, and whether life-prolonging treatments should be explored. 

In scenarios where one cannot express their wishes due to illness or injury, a living will empowers a designated health care proxy to advocate for your preferences.


Appointing a Healthcare Proxy

Aside from having a living will, individuals can appoint a healthcare proxy or agent. While the living will can state the patient’s preferences, the proxy has medical power of attorney. They become the attorney-in-fact and make medical decisions on behalf of the patient, especially if the living will does not cover situations that may arise. 

Any adult can be the designated health care proxy, though it is highly recommended that principals choose someone they trust according to their wishes. This can include their spouse, adult child, close friend, or lawyer. South Carolina allows multiple co-agents, but this could lead to conflict if agents do not agree on healthcare matters. An alternative is to name one agent the primary health care proxy and the other a secondary proxy in case the first one is unavailable to fulfill their role. 

Selecting a healthcare proxy is a decision that should not be taken lightly. It’s essential to choose someone who understands your values, beliefs, and treatment preferences and can confidently act in your best interests during challenging times.


Navigating End-of-Life Care

A living will allows patients to lay out their preferred end-of-life care. Some patients may want to explore aggressive life-prolonging treatments, less aggressive options, or focus on a comfortable end-of-life experience consisting of pain management and palliative care. Patients can prioritize survival or maintaining comfort and dignity in their final days, and a living will ensure they receive the healthcare they want even if they cannot communicate. 

Living wills are an important instrument for those who want to avoid aggressive treatments in favor of end-of-life care. Choosing end-of-life care is an option for those who wish to avoid physical and emotional pain for themselves and their surviving loved ones. Their surviving families can avoid the cost of prolonged medical treatments and hospital confinement and instead focus on the inevitable passing and how it affects their families. 

By outlining one’s wishes in a living will, principals can provide clarity to your loved ones and healthcare providers. This alleviates the burden of decision-making during already emotionally fraught circumstances. 


Legal Requirements and Formalities

Creating a valid living will requires adherence to specific legal requirements and formalities. These may include witnessing and notarization requirements, as well as compliance with state-specific laws governing advance directives. 

While an individual can write their living will independently, the best way to ensure one’s living will is enforceable is to seek the services of a trust and wills lawyer. Creating a living will generally includes these steps:

  • Choose a Healthcare Proxy: Principals should ideally have a healthcare proxy to make medical decisions. They should find someone who can be trusted to follow the principal’s wishes. 
  • Draft the Living Will: Work with a lawyer to create a comprehensive living will. This can include one’s healthcare preferences during different situations. They can also guide the principal in drafting their will to manage the distribution of their assets in case of their passing. 
  • Execution: The living will must be signed by two witnesses and acknowledged by a notary public. 


Updating and Reviewing a Living Will

As circumstances change, so do the healthcare preferences of the principal. Regularly reviewing and updating one’s living will is essential to ensure it accurately reflects their wishes and who they would want as a healthcare proxy.

Life events such as marriage, divorce, the birth of children, or changes in medical conditions should prompt a review of one’s living will. By keeping the living will current, one can rest assured that their healthcare preferences will be honored when the time comes.


Frequently Asked Questions


What is the difference between a traditional will and a living will?

A will is different from a living will. A will outlines how an individual’s assets and property are distributed upon death. Without a will, a person’s assets are divided according to their state’s intestate succession laws. 

A living will only covers the principal’s healthcare preferences and end-of-life decisions. If they face a life-threatening condition and are unable to communicate their wishes, their living will and healthcare proxy will dictate how their care is managed. 


What are wills and trusts? Is there a difference between living wills and trusts?

Wills and trusts are estate planning tools. A living will is limited to healthcare and end-of-life arrangements, while a will can distribute assets to a person’s surviving loved ones. However, an asset on the will could be subject to probate and taxes. This could reduce the asset’s value significantly by the time it is given to the designated beneficiary. In this case, the principal may use trusts to manage their assets and exempt them from probate. 


What’s the difference between a living will and a healthcare proxy?

A living will is a legal document outlining a person’s medical care if they cannot communicate their medical wishes while in critical condition. A healthcare proxy is someone assigned to make medical decisions on behalf of the principal in case they are incapacitated. A patient can have both; in this case, it is the healthcare’s responsibility to follow the living will and make decisions for the patient in situations not covered by the living will. 


Seek Experienced Assistance For Drafting Your Living Will

A living will plays a pivotal role in estate planning by providing clarity and guidance on healthcare preferences and end-of-life care. By drafting a comprehensive will, assigning a trusted healthcare proxy, and conducting estate planning ahead of time, proactive steps can be taken to safeguard and alleviate uncertainty for surviving loved ones.

If you would like to create a living will or seek advice and guidance on your estate planning, we invite you to contact Wiles Law Firm to schedule a free consultation. Our full-service law firm can assist with power of attorney, living wills, and trusts that protect your rights and assets.

Schedule your appointment today.