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Frequently Asked Questions About Estate Planning

When is a good time for an elder to consult with an attorney?

What is a living will?

A living will is a document that explains whether or not you want to be kept on life support if you become terminally ill and will die shortly without life support, or fall into a persistent vegetative state. It also addresses other important questions, detailing your preferences for tube feeding, artificial hydration, and pain medication in certain situations. A living will becomes effective only when you cannot communicate your desires on your own.

A living will is usually limited to the refusal of, or desire for, medical treatment in the event of:

  • a terminal illness
  • an injury, or
  • permanent unconsciousness

In the event you are unable to communicate your desires in such situations and do not have a living will, doctors or hospitals may decide they are legally obligated to perform certain procedures that you would not desire. If your spouse, adult child or another relative is called upon to make a decision about your care, he or she will find it helpful if you have expressed your wishes in a living will. A living will tells others what you want to happen in such circumstances.

You may see a living will called by other names, such as:

  • a declaration regarding life-prolonging procedures;
  • an advance directive; or,
  • a declaration.

Living Will Compared to a Last Will and Testament

It is important not to confuse a living will with a last will. A last will and testament expresses what you want to happen to your property and minor children if you die. A living will expresses what you want to happen to your person regarding medical treatment while you are still alive.

What is a health care proxy?

health care proxy is a document that names someone you trust as your proxy, or agent, to express your wishes and make health care decisions for you if you are unable to speak for yourself. A health care proxy may also be called a durable medical power of attorney or an appointment of a health care agent or health care surrogate. Naming a proxy can help ensure that you get the health care you prefer in the event that you cannot communicate your wishes.

You do not have to be terminally ill to designate a health care proxy or for the proxy to make decisions on your behalf. Typically, your proxy will make treatment decisions whenever you are incapacitated and unable to communicate due to a temporary or permanent illness or injury. A doctor may have to certify that you are incapacitated before your proxy starts making decisions for you. Your proxy may also have access to your health records and other information, depending on the permissions you give them. If you want to place restrictions on what your proxy can do or see, you should include these in your health care proxy document.

It is important to appoint a proxy you trust who will be assertive and honor your wishes. Make sure your proxy is aware of your:

  • Personal attitudes toward health, illness, death, and dying
  • Medical treatment preferences, such as feelings about palliative (comfort) care, life-sustaining care (like artificial hydration and nutrition), and treatments you may need in the event you are unconscious
  • Religious beliefs
  • Feelings about health care providers, caregivers, and health care institutions

All of the above could be included in a living will, a document that your proxy can use to make decisions on your behalf. Many states combine health care proxies and living wills into one advance directive document. Make sure to update these documents as needed and/or to tell your proxy if your feelings or attitudes change so they are able to make the most appropriate choices for you. Additionally, it is important to know that you may change your proxy at any time. To do so, create a new health care proxy document.

If you regain the ability to make your own decisions, you can choose to speak on your own behalf again.