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Will vs Living Will

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A will, or Last Will and Testament, distributes assets after death, while a living will outlines healthcare preferences in case a person becomes incapacitated. When preparing for the future, these two vital legal papers are available to assist individuals in guaranteeing that their desires are met in case of incapacitation or death. Most notably, these documents have distinct objectives and cover different aspects of an individual's life.

Essential Elements of a Will

A will is a legally binding document that details an individual's desires regarding the distribution of their assets upon their death. It permits the testator, or the person creating the will, to name beneficiaries, specify how property should get allocated, appoint an executor to oversee the process, and give guardianship instructions for minor children. The legal will only take effect upon the testator's death and must go through the probate process. It is where the court verifies the document's validity and ensures that the assets are distributed according to the testator's wishes. Below are some essential elements of a will.

  • Identification: A will typically start with identifying the testator, which includes their full name, address, and other essential details.
  • Asset Distribution: The document specifies how the testator's assets, such as investments, property, and personal belongings, should be distributed among the beneficiaries.
  • Executor: A will designates an executor responsible for managing the estate, executing the will's provisions, and addressing any outstanding debts or liabilities.
  • Guardianship: If the testator has minor children, the specified will appoint a guardian or guardian.
  • Contingencies: A will can also contain provisions for specific situations, such as naming alternate beneficiaries or addressing the possibility of a beneficiary's death.

Essential Elements of a Living Will

A living will, also called an advance healthcare directive, is a legally binding document that enables individuals to communicate their preferences about medical treatment and end-of-life care if they cannot do so. Unlike a standard will, a living will goes into effect during the testator's lifetime, specifically when incapacitated or terminally ill. It is a comprehensive guide for healthcare providers and family members to make essential medical decisions based on the testator's wishes. Here are some key elements of a living will.

  • Medical Treatment Preferences: A living will outline the testator's preferences for specific medical treatments, such as life-sustaining measures, resuscitation, artificial nutrition, or using ventilators.
  • End-of-Life Care: The document may express desires regarding palliative care, hospice care, pain management, and other aspects of end-of-life treatment.
  • Health Care Proxy: A living will appoint a healthcare proxy or agent, often known as a durable power of attorney for healthcare, who will make medical decisions on the testator's behalf, ensuring their wishes are respected.
  • Organ Donation: Some living wills include instructions related to organ or tissue donation, enabling individuals to express their desire to contribute to medical advancements or save lives.
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Why Hire a Lawyer for a Will and a Living Will

Lawyers follow a specific process when drafting a living will and will. First and foremost, they understand that a living will and will do not serve as a final will that allocates personal and property belongings to heirs after one's passing. Instead, it outlines the medical care and treatment a person wishes to receive in the event of incapacity and for how long. In addition, lawyers seek to understand an individual's objectives and desires for medical care if they cannot make important decisions for themselves.

In addition, lawyers consider an individual's personal or religious beliefs and evaluate ways to incorporate them into the medical care they obtain when crafting a living will and will. To make the living will more understandable, lawyers may divide it into categories. For instance, they may define situations in which medical care should remain extended to preserve life and specify what life-saving procedures, such as dialysis or blood transfusions should get administered.

Lawyers may also create a category that addresses whether an individual wishes to receive care if they are unconscious or in a vegetative state.

Finally, lawyers ensure that the living will is legally sound and includes provisions for dispute resolution. They also guide individuals to make decisions that result in the best possible outcomes. By following this process, lawyers can draft a living will that accurately reflects an individual's wishes and ensures their medical needs are met if they cannot make decisions for themselves.

Benefits of a Will

Here are some key advantages of creating a will.

  • Asset Distribution: A Will, referred to as a Last Will and Testament, allows you to specify how your assets will get distributed after your death. By clearly expressing your intentions, you can provide for your loved ones and minimize conflicts arising from dying without a Will (intestacy). A Will enables you to select beneficiaries, assign specific items or amounts of money to individuals, and establish trusts for minor children or beneficiaries with special needs.
  • Appointment of an Executor: One of the significant benefits of having a Will is the ability to designate an executor responsible for managing your estate and carrying out your wishes. By appointing a trusted family member, friend, or professional as an executor, you ensure that the administration of your estate gets handled efficiently and according to your instructions.
  • Tax Planning: A Will can incorporate strategies for tax planning to minimize estate taxes and safeguard the value of your assets. By consulting with an estate planning attorney or tax advisor, you can structure your Will to take advantage of relevant exemptions, deductions, and other estate planning tools, potentially reducing the tax burden on your estate.

Benefits of a Living Will

Here are some advantages of living will.

  • Advanced Healthcare Directives: A Living Will, also known as an Advance Healthcare Directive or Medical Directive, enables you to express your preferences for medical treatment and end-of-life decisions in advance. It ensures that your wishes are honored when you cannot communicate or make decisions due to incapacity.
  • Decision on Life-Sustaining Treatment: With a Living Will, you can specify whether you want life-sustaining treatments, such as artificial respiration, tube feeding, or CPR, to be administered or withheld if you are in a terminal condition or permanent vegetative state. It empowers you to retain control over your medical care and relieves your loved ones from making challenging decisions during emotionally difficult times.
  • Emotional and Financial Relief: Establishing a Living Will alleviates the burden on your loved ones, who would otherwise have to make difficult decisions regarding your healthcare. It eliminates the potential for family disputes and reduces the emotional stress on loved ones who may disagree on the appropriate course of treatment. Additionally, a Living Will can prevent unnecessary medical expenses by ensuring that patients only get desired treatments.

Key Terms for Will vs. Living Will

  • DNR: A DNR directive is a legally binding instruction provided by a healthcare professional, indicating that they will not attempt to revive your heart or restore breathing in the event of cardiac or respiratory arrest.
  • Durable Power of Attorney: A durable power of attorney document grants authority to your chosen representative to engage in financial transactions and make other legal decisions on your behalf as if they were you.
  • Living Trust: A living trust manages the assets and property of an incapacitated person, where the trust assumes ownership of the designated assets.

Final Thoughts on Will vs. Living Will

In a nutshell, the topics of "will" and "living will" revolve around planning for the future and ensuring that our wishes are honored when it comes to significant matters such as healthcare and the distribution of assets after death. While both documents serve different purposes, they share the general goal of providing clarity and guidance when people cannot express their preferences or make decisions.

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