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Another “must have” estate planning instrument is a Living Will. Living Wills, which are often referred to as Advanced Directives or Healthcare Proxies, are considered by many to be as important, if not more important, than your Last Will and Testament.
A Living Will enables people to inform their physicians of their wishes concerning what extraordinary medical procedures they do or do not want to be performed if they are in a terminal condition with no hope of recovery. Some folks want every available procedure performed to keep them alive for as long as medically possible, while others want no extraordinary procedures whatsoever. With a Living Will you can spell out your exact instructions concerning your wishes. When your wishes are clearly expressed, it takes the weight of the decision off of your family, which is often enormously comforting. Without a Living Will, a family could end up in Court for years trying to figure out what medical procedures someone wanted or did not want, while the individual is in a hospital bed.
Commonly within a Living Will clients request that they not be kept alive artificially through the use of machines, and want to be allowed to die if they are terminally ill, or in a permanently unconscious or persistent vegetative state. On the other hand, some clients request that every possible measure be taken to keep them alive for as long as possible. Living Wills are the perfect instrument to convey your wishes in this regard, and relieve your family from the responsibility and the anguish that comes along with it. Nobody wants to make the decision to “pull the plug” on Mom or Dad.
In the landmark Connecticut case, McConnell v. Beverly Enterprises, the victim of a car accident, Carol McConnell, was kept alive artificially for four years while the Courts were trying to decide if she should be removed from life support machines. If Carol had executed a Living Will, her family would not have had to suffer through those four years. Living Wills remove the burden from your loved ones. When the time comes the decision has already been made and your physician will carry out your wishes. The law provides that if the physician or health care facility is unwilling to comply with the patient’s wishes, the patient must be transferred to another physician or facility that is willing to comply.
A recently updated Living Will also enables you to name a person to be your Health Care Agent. The purpose of this agent is to convey your wishes concerning the withholding or removing of life support, and to take whatever actions are necessary to ensure that your wishes are given effect. This new Living Will also allows you to name someone whom you would nominate to be your Conservator, should one be necessary to appoint.
Another benefit of utilizing a Living Will is that it allows you to designate anatomical gifts. Unlike the organ donation language on your driver’s license, a Living Will enables you to specify what organs you would be willing to donate and for what purposes. Organ and tissue donation is truly the gift of life. Thousands of people die each year while waiting for organs. By executing a Living Will that provides for organ donation it gives you the opportunity to save someone’s life, or even aid in research to find cures for many diseases. If organ donation is important to you, a Living Will is an excellent way to ensure your wishes are adhered to.
Unfortunately, with people living longer today, incapacity is becoming more of an issue. They say that fifty is the new thirty, however you can bet that ninety is still the same old ninety. As people live longer incapacity is playing a larger and more important role in estate planning. Your Living Will should contain language that allows your healthcare agent to obtain medical information about your condition to help in carrying out your wishes. Due to recent legislation known as Health Insurance Portability And Accountability Act (HIPAA), even spouses may find it difficult to obtain medical information about each other without special language in their Living Will.
While most of the major religions are in favor of Living Wills, some have particular language that they would like to see included in your Living Will. Your attorney should ask you about this, and if not, you should bring it up and discuss it with him or her.
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