Planning for the later years of your life requires the right legal documents. A common area of confusion is understanding the differences between a last will and a living will.
Although a living will and a last will may sound like they cover the same territory, these documents serve entirely different purposes; knowing how they differ will help you pick the one that’s best for you or decide if you need both. So, with that in mind, what follows in this blog is a brief overview of the main distinctions between a living will and a last will and how they both function and are administrated.
We often have people who confuse the two documents as being the same. People are not always aware that the documents are different.
It is easy to remember the difference by thinking of the words “living” and “last.” A living will takes effect when you are still living and gives health care providers instructions for treating you while you are alive.
A last will and testament describes your final wishes for your property and your minor children. It is not effective until you die, and you can revoke or change it as long as you are living. The final last will and testament you write will be one of your last legal documents to become effective.
What is a Living Will?
The terms “living will,” “health care directive,” and “advance directive” all refer to the legal document that lets people state their wishes for end-of-life medical care.
A living will, despite its name, isn’t at all like the wills that people use to leave property at their death. A living will, also called a directive to physicians or advance directive, is a written, legal document that spells out medical treatments you would and would not want to be used to keep you alive, as well as your preferences for other medical decisions in case you become unable to communicate your decisions. For example, you may put a do-not-resuscitate directive in your living will. Other decisions often include the use of breathing or feeding tubes, palliative care or organ donation.
Doctors and caregivers will refer to your living will to guide your quality of care and decide which life-sustaining measures to take if you’re terminally ill, seriously injured, in a coma, in the late stages of dementia or near the end of life.
It is possible to change or revoke a living will as long as you are capable of doing so. It has no power after death.
Don’t overlook a living will in your estate planning. Without a document expressing those wishes, family members and healthcare professionals are left to guess what a seriously ill person would prefer in terms of treatment. They may end up in painful disputes, which sometimes make it all the way to a judge for final decision-making.
Creating Your Medical Care Directive
Advance directives aren’t just for older adults. Unexpected end-of-life situations can happen at any age, so it’s important for all adults to prepare these documents.
You can create a legally binding health care directive (living will) without paying an attorney by using a reputable online service like Legal Wills to state your end-of-life wishes for medical care in as much or as little detail as you’d like. For example, it’s common to direct that “palliative care”—that is, care to decrease pain and suffering—always be administered, but that certain “extraordinary measures,” like cardiopulmonary resuscitation (CPR) not be used in certain circumstances.
By planning ahead, you can get the medical care you want, avoid unnecessary suffering and relieve caregivers of decision-making burdens during moments of crisis or grief. You also help reduce confusion or disagreement about the choices you would want people to make on your behalf.
Choices That Matter
A living will should designate a health care agent, who will help organize your medical care if you are unable to do so. It should also say what treatments and level of care and support you might wish or not wish if you become unconscious, or a severe accident occurs which may render you incapable of making such care decisions yourself. For example, do you only want treatment if a cure is possible? Would you like to be kept on life support to extend your life in any situation? Or only if there is hope of recovery? Do you want palliative care to ease pain and discomfort while terminally ill?
You should address a number of possible end-of-life care decisions in your living will, such as:
- Mechanical ventilation takes over your breathing if you are unable to breathe on your own. Consider if, when and how long you would want to be placed on a mechanical ventilator to keep you alive.
- Tube feeding supplies the body with nutrients and fluids intravenously or via a tube in the stomach. Decide if, when and for how long you would want nutritional and hydration assistance.
- Cardiopulmonary resuscitation (CPR) restarts the heart when it has stopped beating. Determine if and when you would want to be resuscitated by CPR or by a device that delivers an electric shock to stimulate the heart.
- Antibiotics or antiviral medications can be used to treat many infections. If you were near the end of life, would you want infections to be treated aggressively or would you rather let infections run their course?
- Palliative care includes any number of interventions that may be used to keep you comfortable and manage pain while abiding by your other treatment wishes. This may include being allowed to die at home, getting pain medications, and avoiding invasive tests or treatments.
- Organ and tissue donations for transplantation can be specified in your living will. If your organs are removed for donation, you will be kept on life-sustaining treatment temporarily until the procedure is complete. To help your health care agent avoid any confusion, you may want to state in your living will that you understand the need for this temporary intervention.
- Donating your body for scientific study also can be specified. Contact a local medical school, university or donation program for information on how to register for a planned donation for research.
In determining your wishes, think about your values. Consider how important it is to you to be independent and self-sufficient and identify what circumstances might make you feel like your life is not worth living.
Do Not Resuscitate and Do Not Intubate Orders
You don’t need to have an advance directive or living will to have do not resuscitate (DNR) and do not intubate (DNI) orders. To establish DNR or DNI orders, tell your doctor about your preferences. He or she will write the orders and put them in your medical record.
Even if you already have a living will that includes your preferences regarding resuscitation and intubation, it is still a good idea to establish DNR or DNI orders each time you are admitted to a new hospital or health care facility.
Canada’s Medical Assistance in Dying
It is important to note that currently Canada’s Medical Assistance in Dying (MAID) legislation does not allow, for example, someone with a living will to request a medically assisted death on behalf of another nor does it allow a patient to authorize a request for a medically assisted death in advance. The MAID legislation also prohibits a medically assisted death if the patient loses the capacity to give informed consent before the procedure is administered.
Your Living Will After Death
Any authority granted by a living will ends when the person who made the document dies, with the single exception that some living wills or powers of attorney give healthcare agents the power to make decisions about organ donation or autopsy. But because those decisions must be made very soon after death, the authority is not long-lasting.
Again, this is in sharp contrast to a regular “last will and testament,” which has no effect when the will-maker is alive but becomes legally binding at death.
Safeguarding Your Living Will
You should give a copy of your living will to your primary doctor and should provide copies to other physicians who perform medical procedures on you.
You could also give copies to close family members who you trust. If you think a family member will not honor your end-of-life wishes, you might not want to give them a copy of your living will.
What is a Last Will?
A last will and testament is a legal document that details your instructions for how to distribute your property after your death. You can also name the person responsible for managing and distributing your property, often called your executor.
During the probate process, a court will review your will to ensure it is valid, hear any challenges to the will, and make certain the executor administers the estate in accordance with the will. Unless your instructions violate the law or cannot be fulfilled, a probate court will honor the terms of your last will and testament.
If you have minor children, you also can use it to name who you wish to be their legal guardian. Usually, courts will honor your choice. However, courts will not appoint your designated guardian if it is not in the best interest of your children. For example, if your preferred guardian ends up incapacitated or incarcerated, a judge will choose someone else, likely one of your family members or close friends.
Dying without a valid will is called “intestacy.” If you did not create a last will and testament, your province’s intestacy laws will determine how your property will be distributed. These detailed laws give preference to children of the deceased, followed by close relatives.
How a Last Will Works
A last will only becomes effective after the death of the person writing the will. In the will, the will-maker (also called the testator) names an executor of the estate as the person who will administer, or carry out, the will’s provisions.
The executor is responsible for gathering all the estate’s property, keeping accounting records, and paying any taxes or outstanding debts of the estate. After all of that is taken care of, the executor can commence with distributing the deceased’s property to the beneficiaries as provided for in the last will.
A last will can also be changed or revoked any time prior to the testator’s death.
Storing Your Validly Formed Last Will
It is best to keep the original last will and testament in a safe place that is known to your executor and can easily be accessed when the time comes.
Unlike living wills, only the original last will and testament is legally binding in most jurisdictions, and it must be properly signed by you (the testator) and your witnesses. Copies of a last will and testament usually are not enforceable. Provincial law may allow courts to accept a trustworthy copy if the original cannot be located.
It is not a good idea to use a safe deposit box to store your will. Bank rules for accessing a safe deposit box can make it difficult to obtain the will when the owner is deceased.
Living Will vs. Last Will: Which One Do You Need?
As you can tell from above, the main difference between living wills and last wills is their function. A living will takes effect while you’re still alive, whereas a last will takes effect after you die. Furthermore, a living will ensures you receive the medical care you desire, and a last will ensures your estate is handled accordingly.
Since a living will and last will both cover vulnerable times in you and your family’s life and function differently, you’re safest when you have both. They preserve and enforce your wishes when you no longer can.
With both in place, your loved ones won’t have to make snap decisions in high-stress situations or face unnecessary legal fees to figure out what you wanted. Instead, you can lay it all out for them. If you think a living will or a last will are right for you, consider some of the packages at Legal Wills to help get the process started.
Estate Planning is For Everyone
Last wills and living wills should be considered by everyone. Both can provide you and your loved ones the peace of mind that your wishes will be followed—in the case of a last will, after your death, and with a living will, before. Practically, a last will can also make the probate process go more smoothly.
The Time is Now
Creating these documents when you’re healthy allows you to consider your options carefully without immediate health concerns weighing on you. Moreover, you can also discuss your choices with your loved ones ahead of time so they won’t have to make snap decisions in high-stress situations or face unnecessary legal fees to figure out what you wanted.
If you are undergoing surgery or are critically or terminally ill, a living will is essential, and a last will is certainly recommended.
Quite simply, the best time to prepare these documents is now.
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