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Important Facts About Living Wills

If you became seriously ill or injured and were unable to make decisions for your healthcare, what would happen? You don’t have to be old to become incapacitated. A living will, a component of an advance health care directive can outline your wishes so that your loved ones can make informed decisions about your care in an emergency.

Your living will doesn’t passes assets and property to beneficiaries like a standard will. Instead, it advises your doctors and family about how you want to receive medical care and may limit certain treatments. Your living will can bring your family comfort in times of uncertainty, knowing they understand your healthcare wishes. Creating your living will can bring peace of mind knowing there is a plan for medical emergencies. There are ten things you should know about living wills:

1.    Rules for Living Wills Vary by State

Depending on your residential state, this document may be referred to as an advance directive. Each state has different requirements and procedures for a living will’s creation and execution.

If you spend significant amounts of time in another state, ensure your living will is valid in the second state. Most states (but not all) will accept a living will from another state if it is valid in the state where it was created. Check with your attorney about your state’s rules. If you spend significant time out of the country, you want to know the country’s laws to create a valid living will while there.

2.    Your Living Will is a Binding Legal Document

Do not rely on an informally written document or verbal consent as your living will. Before you become incapacitated, you must document your healthcare wishes in compliance with state law and legally address instances of incapacitation, permanent unconsciousness, or a terminally ill diagnosis.

3.    Medical Doctors Determine the Incidence of Incapacitation

Whether terminally ill, permanently unconscious, unable to communicate, or incapable of making rational decisions due to injury, a medical doctor’s assessment, and usually a second opinion, is the determining factor putting your living will into effect. If you see your doctor regularly, discuss your wishes and living will ahead of time to see if they will comply with your instructions or if there is something to talk through.

4.    You Can Change Your Living Will

You can revoke, revise, or create a new living will at any time. However, simply destroying the old copy complicates the connection it may have to other estate planning documents or files. Your attorney can help you fully and formally revoke or modify your living will correctly.

5.    There is a Difference Between an Advance Directive and a Living Will

There are numerous advance directive document types as it is a broad category of legal instructions regarding your healthcare. The more familiar include a medical power of attorney, living will, and do not resuscitate order (DNR). A living will is a subset of the advance directive specifically expressing medical treatment preferences in the case of terminal illness or incapacitation.

6.    Younger People Need a Living Will

Adults of all ages can benefit from implementing this legal document. Seemingly healthy young individuals can become unexpectedly ill or injured. Procrastinating about creating your living will until you get “old” could leave you in an unfortunate situation after an accident or serious illness.

A living will does more than convey your desire to remove yourself from life support under certain conditions. It can specify treatment and care preferences, including medical techniques and devices you accept (or do not), pain management, and clergy visitation.

7.    You May Appoint a Healthcare Agent

You may choose a healthcare agent. The agent may not be your doctor or medical team to avoid conflict of interest. Nor can they own, manage, or work for the facility where you receive treatment. Often, a family member who you trust with the significant responsibility of handling stressful emergencies will accept this role — review your emergency, critical, and end-of-life care preferences with them.

8.    Have a Healthcare Power of Attorney

This power provides an individual the right to make medical decisions on your behalf if you cannot do so. Appointing a healthcare power of attorney is not the same as your living will, but it is part of the estate planning process.

9.    Will the Medical Staff and My Family Comply with My Living Will?

Ultimately your medical doctor is responsible for your course of treatment. They technically do not have to follow your living will, yet most will. However, in an emergency, your doctor’s choice may override your living will if they feel an ethical obligation to the Hippocratic oath. Talking to your doctor about your choices in advance and sharing access to your medical history with family members using a HIPAA form are your best courses of action to feel secure that everyone will comply with your wishes.

Having a living will is essential to a complete estate plan. Creating this document with your estate planning attorney can bring you and your family peace of mind.

For assistance, please contact our Ruston, LA office by calling us at (318) 255-1760.

End of Life Planning: Safeguarding Current Comforts & Future Quality of Life

Powers-of-attorney documents will convey on other trusted people the authority to act on your behalf.

But when it comes to actually using those documents at the time of a health-care crisis, clear and powerful documents are just the beginning. The decision-points can (and must) be put down on paper in advance, but when it comes to end-of-life situations, the clarity on which we lawyers thrive can be very hard to find.

Sitting in her lawyer’s office, the client may have been quite certain about health-care decisions. She does not want her life prolonged by a battery of aggressive treatments, where these would not preserve her quality of life. She does not want blood transfusions, dialysis, repeated courses of antibiotics and chemotherapy, cardiopulmonary resuscitation, or breathing and feeding tubes. She does not want to die inert in the ICU, surrounded by machines and strangers. She wants to die at home, surrounded by loved ones, at a time when she retains presence of mind to make her peace.

But that goal doesn’t just happen from wishing it and stating it. It happens with additional careful preparation for the realities. As the end of life approaches, the clarity we lawyers enjoy can be elusive. When a person gets a prognosis of two to five years (maybe), where, along that continuum, would be the time to start declining aggressive treatment? When there’s always one more intervention that may (or may not) produce a good result? When one decision could create an ever-widening array of complications? When, step by step, the patient becomes less and less able to exercise autonomy, and where treatment decisions by caregivers are not in line with the care the patient was clear about when she was sitting in the lawyer’s office?

No matter how clear the powers-of-attorney documents, with all these imponderables, the patient can end up in a situation many miles away from what she wanted. And there’s no possible do-over.

Powerful and clear power-of-attorney documents are an essential first step and we lawyers are glad to take care of that part. Beyond that, though, thorough preparation is essential.

Consider that the best result may be one that cares for comfort right now, in the moment. The question is not necessarily about how long life can be prolonged. The question may be, rather, how comfort can be maintained – in this moment, and then the next moment, and the next. The question is how life can be made better right now. Watch a video by palliative-care physician B.J. Miller, on why this is so important, here.

Make concrete plans. These include specifying what you want to happen if you’re no longer able to live independently; choosing wisely whom you want to act for you, to make sure your plans will be followed; being ready with your health-care documents before you find yourself deposited in the emergency room or ICU; and seeking the reassurance that your loved ones will be cared-for when you’re no longer there. Judy MacDonald Johnson has prepared simple, forthright worksheets to help with this process, here.  She speaks about these worksheets in this moving video.

There is no doubt that the process in safeguarding quality of life at the end of it is possibly the most challenging of all. But if that process can create as much pleasure as possible through an extremely difficult time of life, and if forthrightly engaging in that process would facilitate a passing more in line with what we would envision, the worth of the process will be felt. The transition will be smoother and more meaningful for the dying person, and a kinder legacy will be left behind for those who accompany us on this journey.

Please contact our Ruston, LA office by calling us at (318) 255-1760 or schedule an appointment to discuss how we can help with your future planning.

Your Estate Plan Need to Include These 5 Components

The need for estate planning becomes more and more critical as we age. Many people avoid estate planning because they do not want to think about the end of life, failing health, or disability. Others believe that an estate plan is only for rich people. However, an estate plan is helpful for the senior adult and their families regardless of overall wealth.

The estate is all the property owned both individually and jointly, including bank accounts, real estate, jewelry, etc., and what is owed. Without an estate plan, it is very difficult to carry out a person’s wishes and can bring on a long, drawn-out probate that can be very expensive for the family. If an estate plan is in place, it can provide peace of mind for the senior adult and their family, as well as protection for the wishes of the senior.

Below are some basic guidelines for what should be included in an estate plan.

  1. Will. A will provides for an executor of the estate, who will take care of managing the estate, paying debts, and distributing property as specified. The distribution of assets can be outlined in the will. This can be as broad or detailed as a person wishes. In a will, beneficiaries and guardians for minor children should be assigned. It may not seem necessary to discuss minor children when discussing seniors and estate planning, but with the rise of grandparents raising grandchildren, this may indeed be an important part of the will. A senior adult can spell out, in the will, how they want their funeral and burial to be carried out as well.
  1. Living Will. A living will outlines a senior’s wishes for end-of-life medical care. It can include, in as much detail as the senior wishes, what medical treatments the senior would or would not like to have in specific situations. A living will takes the stress of making those decisions off of family members and helps to keep peace in families during times that can be difficult and emotional.
  1. Healthcare Power of Attorney. A healthcare power of attorney is also a key part of an estate plan. This legal document provides for someone to legally make healthcare decisions for a senior adult. A durable power of attorney will remain in effect for the senior if the senior becomes unable to make decisions.
  1. Financial Power of Attorney. A financial power of attorney names an agent who has the power to act in the place of the senior adult for matters relating to finances. The durable financial power of attorney stays in effect if the senior adult becomes unable to handle their affairs. By having a financial power of attorney in place, the stress and expense of a guardianship can be avoided, and the senior has the final say in who will make decisions relating to finances.
  1. Trust. Setting up a trust can be beneficial for the distribution of specific assets or pieces of property. The benefit of a trust is that it does not go through probate, as compared to a will. Property is still distributed at the death of the trustmaker, but it is done without the need of a court. This also allows for privacy of the trustmaker, where with a will and a probate, all of the deceased person’s assets and the terms of their will is made public.

Having an estate plan is necessary if you or your senior loved one wishes to have a say in what happens at the end of life and with assets after death. Consulting and planning with an elder law attorney will help to ensure that all options are explored and the best possible solution is utilized. The elder law attorney can walk you through all of the necessary parts of the estate plan, provide an explanation, and prepare the paperwork. Elder law attorneys will help take the guesswork out of estate planning.

If you have any questions about something you have read or would like additional information, please feel free to contact us. Please contact our Ruston, LA office by calling us at (318) 255-1760 or schedule an appointment to discuss how we can help with your long-term care needs.