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Why A Living Trust and a Living Will Might Be Part of Your Estate Plan

What are Medical Advance Directives and what is the difference between a Living Trust and Living Will?

There are several different legal documents that your estate planning attorney can prepare for you to direct how you want health care to be provided. The Medical Advance Directive often refers to a Living Will, but the category also includes medical durable powers of attorney, cardiopulmonary resuscitation (CPR) directives, Do Not Resuscitate (DNR) orders, Medical Orders for Scope of Treatment (MOST) and other directives regarding your medical care in the event you have a medical crisis, a terminal medical condition and just before or after your passing. The article “About the Law” from The Villager describes these important issues in detail.

In some states, a Living Will is known as an Advanced Directive for Medical/Surgical Treatment. This document tells medical professionals how you want to be treated, if you are suffering from a terminal condition that is neither curable nor reversible, or if you are in a coma, also known as a “persistent vegetative state” and cannot speak for yourself. It’s referred to more commonly as a Living Will and is signed with the same type of formality as a Last Will and Testament. Like your will, it must be signed in front of two witnesses and it must be notarized.

The Living Will is used for two situations. One is a terminal condition, where the use of life-saving procedures will only postpone death, but not promote any healing that would lead to a recovery. The second is in a persistent vegetative state, which must be determined by medical professionals. There are three choices for the family: one is to forgo life-sustaining treatment and let the person die. The second is to accept life-sustaining treatment, but only for a limited period of time. Often this is to allow family members to gather to say their farewells. The third is to continue life-sustaining treatment.

A person may express their wishes for their care and also give permission to certain persons to talk with their doctor. This is made necessary, due to the HIPAA act. Otherwise, the doctor would legally not be permitted to discuss the patient’s care with unauthorized people.

As long as you are able to make your own medical decisions, you can determine what treatments to receive, or which treatments you do not wish to receive. The goal of the Living Will is to allow you to express your wishes, if you have lost the ability to communicate.

Other estate planning documents that you’ll need are a will, to distribute your property, a financial or general power of attorney, so that someone you name can make decisions and take actions on your financial affairs and, depending upon your situation, a trust.

Because the laws governing living wills and estate planning are set by your state, you’ll want to speak with an elder law attorney in your community. They’ll help you determine how you want your medical care to proceed, guide you in clarifying your wishes for your family and create the necessary legal documents to fulfill your wishes.

Reference: The Village (July 3, 2019) “About the Law”

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