Estate planning isn’t just about the assets you leave behind. It’s also about making important decisions that affect you while you’re still living and impact your family. As you begin creating an estate plan, you’ll want to ensure it includes key information about how you would like your medical care handled under certain circumstances. You can do that by making a living will or an advance directive.
The difference between the two can be a little confusing because they overlap, but we’ll discuss living wills and advance directives in this article to help you decide which one is best for you.
In This Article
What Is an Advance Directive?
Let’s start by defining each type of document. According to the National Institute on Aging, an advance directive is a legal document detailing your wishes for future medical care if you become incapacitated in some way and are unable to decide for yourself at that time. It can include mental incapacity due to a coma, stroke, dementia, terminal illness, or severe or life-threatening injury.
There are different parts of advance directives that may target different areas of healthcare. One of them is a living will.
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What Is a Living Will?
A living will is part of an advance directive that typically focuses on your wishes for what life-sustaining treatments you would or wouldn’t want if you are ever incapacitated due to:
- An incurable or terminal illness that will likely result in death in a relatively short period of time
- Loss of consciousness that is determined with a high degree of medical certainty to be permanent
- An advanced form of dementia or another condition that causes you to lose substantial cognitive ability that your doctors determine you will not get back with a high degree of medical certainty
Life-sustaining treatments or life support measures that you may or may not want to be used in these situations include being kept on a ventilator, administering CPR, and receiving artificial nutrition and hydration (a feeding tube). In a living will, you can specify which of these and other treatments you would and would not want to receive.
Advance Directives Have a Broader Scope
Advance directives often combine different types of directives into one document. They may also give instruction for medical situations that do not strictly involve life-sustaining procedures.
You may include information about your mental healthcare if you cannot communicate your wishes due to being declared mentally incompetent, such as with dementia, a traumatic brain injury, or other illnesses or injuries.
Therefore, a key difference between advance directives and living wills is that a living will is often more limited in scope than an advance directive. Advance directives may include:
- A living will
- A healthcare power of attorney
- A do not resuscitate order (DNR)
- Organ and tissue donation instructions
- Palliative care preferences, like pain medication
- Instructions and preferences for surgeries, vaccines, and medications
- Other documents an estate planning attorney can review with you
Choosing Someone to Make Medical Decisions for You
In addition to a living will, advance directives often include a healthcare power of attorney. If you are incapacitated, whether through a serious injury or terminal illness, and you cannot make medical decisions for yourself, you should designate someone to decide on your behalf. Known as a healthcare proxy, healthcare agent, or an attorney-in-fact, this person is legally authorized to make decisions about your healthcare for you.
The healthcare power of attorney document may also enumerate some specifics of how your proxy should make decisions on your behalf. You should discuss your beliefs, values, and preferences with your healthcare proxy before assigning them healthcare power of attorney. They need to understand these things so they can honor your wishes.
Additionally, a healthcare power of attorney allows someone you trust to make key medical decisions and provide clarity for your wishes to medical practitioners. Your agent can also respond to changing circumstances within your medical situation and even override your living will in your best interests, if you give them the power to do so.
If you are married, you may only feel the need for a living will or healthcare power of attorney to cover life support situations because your spouse will legally be able to make important decisions for your medical care in various situations. However, you should consider situations where your spouse may be unavailable to make these decisions for you (such as if they are also incapacitated in the same accident).
In the absence of a healthcare proxy or spouse, doctors in North Carolina typically try to consult with children, parents, and other next of kin to make judgments about life support care. If none of those can be located or they are unavailable, these decisions will be left to the doctor’s discretion.
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Farmer & Morris Law, PLLC Can Help You Create an Estate Plan with All the Essential Documents
Estate planning is essential for those who want to ensure their family members are protected and their wishes are respected regarding not only their assets, but also their important decisions like medical care.
If you’re looking to make plans for your future and your family’s future in the event of your death or incapacitation, a North Carolina wills and estates lawyer at Farmer & Morris Law, PLLC can help. One of our attorneys can help you decide if a living will or advance directive is right for you. Call us today to set up a consultation with a member of our legal team.