Three Things Most People Get Wrong About Living Wills

Probably one of the most critical but misunderstood planning documents is the Living Will, or as we call it in North Carolina, a Declaration of a Desire for a Natural Death. While there are a lot of misconceptions and misnaming going around (no, a Living Will is not a Will that avoids probate; that's a Living Trust), here are the top three. And #3 will shock you! Well, not really, but unless you've already had your first go at planning your estate, you probably will be surprised by it.

1) The term Living Will is not interchangeable with Advance Directives. The term Advance Directive is a catch-all term for any legal document related to future care. This includes documents like a Health Care Power of Attorney, Nomination of Conservator, and, yes, a Living Will. The Living Will is a document that takes care of end of life decisions, either by you making your own decisions about withdrawing care ahead of time or naming a specific person to do that for you. And not all states are the same. For instance, in North Carolina a Living Will has you making your own decision ahead of time and directs doctors to act accordingly. In New York, a Living Will names a specific person to make these types of decisions for you that may be separate from a Health Care Power of Attorney agent.

For more information on the various documents that make up a good estate plan, including the health care documents, check out our free program at http://www.FreeTrustCourse.com. 

2) Living Wills can be simple or complex. Depending on the state you are in, many states allow a Living Will to delineate multiple end of life decisions and not just the withdrawing of life support and artificial nutrition and hydration. North Carolina has two main versions. The "old" style Living Will simply states that if you are diagnosed by a physician (we use two physicians) as being "terminal and incurable" or in a "persistent vegetative state," the physicians are instructed to withdraw life support, or both life support and artificial nutrition/hydration. The "new" version has many other conditions, circumstances, and withdrawal of treatment options.

My firm still uses the older version mainly because I have seen too many of these "other" instances that could have different circumstances and options that are best left to the person you trust to be your health care power of attorney agent. For example, I once reviewed a Living Will that clearly stated "no amputation" as a directive. I asked the person why they had that listed. They told me they were a Type 1 Diabetic, and if they ever had to amputate an arm or a leg that they would rather just be let go. However, this was an absolute prohibition against amputation in a legal document, so if they got an infection in the tip of their pinkie finger and amputation would ensure they lived, then this legal document stating no amputation is in the way. Instead, if they had a discussion with the power of attorney agents about amputation and left this decision in their discretion, it is highly likely they would understand that this small type of amputation was not what you were referring to.

And now the one that will shock you! (maybe).

3) A Living Will won't stop EMTs and other first responders from reviving you. One of the biggest misunderstandings is the difference between a Living Will and a Do Not Resuscitate order, or simply known as a DNR. A Living Will is your instructions to physicians if they have examined you and determined you have reached the end of life, such as being terminal and incurable or in a persistent vegetative state in North Carolina. Note the emphasis on "to physicians." 

If EMTs and other emergency personnel are called to treat you, someone waiving around a Living Will and screaming not to administer treatment will be met with being shoved aside or even a police arrest for interfering. Things are totally different with a DNR because that is an actual order from a doctor to emergency personnel to not revive you. This is issued only by a physician after counseling and an examination of your medical condition, and it is usually reserved when someone being treated would only have them endure a short period of life in extreme pain or discomfort.

Another part of this misconception we get all of the time is that lawyers do not get to draft Do Not Resuscitate Orders as part of the estate planning process. That is something that needs to be discussed with your physician and can only be issued by them. For more on the differences between a Health Care Power of Attorney, Living Will, and DNR, check out the YouTube video from a few years ago: https://youtu.be/jL2nvZ3onlo?si=0OPg8thZvgej6IL- 

I'm not sure if that last one was shocking, but hopefully if you did get good information on the difference between a DNR and a Living Will, then it was worth your time. If you do want to review more information on the basic estate documents, check out our free report at http://www.FreeSimpleWillGuide.com.