The Importance of a Living Will

 

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Written by Monika Lovewell, Trust Manager, J.D., CTFA

 

A man and his wife were sitting in the living room and he said to her, “Just so you know, I never want to live in a vegetative state, dependent on some machine and fluids from a bottle. If that ever happens, just pull the plug.” His wife got up, unplugged the TV, and threw out all of his beer…

All joking aside, a living will is an important tool in your estate planning toolbox. Adults have the right to name someone (an agent) to make medical care decisions for them when they are unable to do so for themselves because of incapacity. Most people recognize the terms “Living Will” or “Durable Power of Attorney for Health Care” as names for documents which cover these types of decisions. However, they are not the same.

A Living Will refers to your end-of-life “plug-pulling” decision only, while the Health Care Power of Attorney covers all of your other medical care decisions. In many states, these are separate documents. Minnesota combines the two in one document called a “health care directive” which is governed by Minnesota Statutes Chapter 145c. The laws and forms for these types of documents are different in every state. Many states will honor another state’s forms, but it’s a good idea to fill out forms for every state in which you routinely spend significant time. For example, if you spend your winters in Florida, then you should complete forms for Minnesota and Florida, and make sure the forms are consistent by naming the same agent(s) and including the same medical care instructions.

In a health care directive, you (as principal) name your agent and specify your care instructions. This is different from a “Provider Orders for Life Sustaining Treatment,” which is known as a “POLST.” The POLST is filled out by your health care provider based upon his or her understanding of what he or she thinks you want. A POLST tells other health care providers what you want for end-of-life treatment during an emergency.

Many people tell me that they have a “power of attorney,” but I find that often they are not sure what exactly it covers. A “regular” power of attorney (such as the commonly used “Statutory Short Form Power of Attorney”) only covers financial decisions and does NOT cover medical care. Conversely, your health care directive does NOT allow someone to pay your bills or manage your assets and property if you become incapacitated.

Other questions I get asked often are, “What’s the difference between a Living Will and a Will?” and “[A]re a Living Will and a Living Trust the same thing?” These are confusing terms. Generally speaking, a will refers to the document that says who will get your money and property after you pass away and it may also name a guardian to look after your minor children. It has nothing to do with your health care or end-of-life decisions. A “Living Trust” is also a set of instructions which says who gets your money and property after you die, but these instructions are carried out by your trustee instead of by a probate court under a will. The “living” part of “living trust” means that your trust is revocable. In other words, you can change the instructions –or completely undo the entire trust – during your lifetime.

There are many more differences between wills and trusts which are beyond the scope of this article. Be sure to ask your attorney to explain the differences between these important planning tools and whether either one fits your individual circumstances and estate planning goals. Our Trust Department is also a great resource for assistance and guidance with these types of issues. Please feel free to contact us. We would be happy to help you.