You may have heard both of these terms used seemingly interchangeably- but what exactly is the difference between a Living Will and a Last Will and Testament? And should you make one or both of these documents part of your estate plan?
Table of contents
- What is a Living Will?
- A case study example of the importance of Living Wills
- What is a Last Will and Testament?
- A case study example of importance of Last Will and Testaments
- Which document is right for me?
- Final considerations
1. What is a Living Will?
A Living Will, also known as a health care declaration, is a document that allows you to make critical health care decisions while you are still capable, before you become incapacitated and cannot make those decisions on your own. It communicates to medical professionals whether you want to receive artificial respiration, intravenous feedings or other forms of life support.
Through a Living Will, you can also direct doctors to suspend all life support, or express your preference for other forms of medical treatments. For example, it’s common to state that “palliative care” for decreasing pain and suffering should be administered, but that extraordinary measures to prolong life, like cardiopulmonary resuscitation, not be used.
In addition to establishing health care directives, a Living Will allows you to name someone as your health care proxy, giving them the power to make decisions about your medical care. Some Living Wills also give health care agents the power to order an autopsy or donate organs.
A Living Will does not go into effect until you become incapacitated and lasts until you recover or die. That means if you go into a coma or become mentally disabled, your treatment preferences are laid out for healthcare professionals to follow. Perhaps the biggest benefit of creating a Living Will, however, is that it helps avoid costly legal battles and guilty feelings among family members who may have different ideas about your end-of-life treatment.
2. A case study example of the importance of Living Wills
The important role a Living Will can play was strongly demonstrated in the incredibly complex and emotional situation that played out during the highly-publicised case of Terry Schiavo. The case, which spanned from 1990-2005, was a legal struggle over the end-of-life care of Schiavo, who was in an irreversible vegetative state.
As a direct consequence of not having a Living Will, Schiavo’s husband and parents battled constantly in and out of court for over a decade to reach a decision regarding the prolongment of her life. Schiavo’s husband and parents had vastly dissimilar ideas of how to handle the matter of her life and death, a disagreement which resulted in both high financial and emotional costs for all parties involved. The case escalated to the point that even the president at the time, George W. Bush became personally involved.
If we can take anything from this case it is that if Schiavo had made Living Will, this whole situation could have been avoided. When the time came to make decisions about Schiavo’s care, the family would be able to refer to her Living Will to clearly understand how she would like to be cared for in the situation that ensued. There would be no reason for the seemingly-endless feud which ensued because the Living Will, as a legally binding document, would have directly communicated to her health practitioners the decisions she autonomously made regarding her own health and care.
3. What is a Last Will and Testament?
A Last Will and Testament gives directives after your death on dealing with your estate. In contrast to a Living Will, which expires once a person dies, a Last Will and Testament is not legally binding while a person is still alive. It can only be legally enforced upon death.
A Last Will and Testament helps survivors distribute your assets and personal property according to your wishes. It can also be used to name a guardian for your minor children or disabled family members, or allow cash or property donations to be transferred to certain individuals or private interest groups.
Part of the process of creating a Last Will and Testament involves naming an executor of your estate. The executor, usually a close family member or friend, is charged with inventorying your estate, probating your will and paying all bills. Anything left over is distributed by the executor to your beneficiaries.
Another vital consideration you should make when creating a Last Will and Testament is to name a Digital Executor. Especially in this age of mass connectivity to technology in all facets of our lives, it is integral that you take proper measures to ensure that your that your “digital estate”, that is, all your personal online data, is protected and managed even after your death.
4. A case study example of importance of Last Will and Testaments
You may have heard the shocking news this year of iconic musician Prince’s passing. His death sent shockwaves through the world due to its apparent abruptness, and the sense of loss that was felt by music fans all over. To add further surprise, when the dust had not yet settled, news broke that Prince left no known Will. “I do not know of the existence of a will, and have no reason to believe that the decedent executed testamentary documents in any form,” Prince’s sister, Tyka Nelson shared.
Given Prince’s reported $300 million estate, this oversight has significant implications for his loved ones left behind. Already, there has been a dispute about how his estate should be divided. While Prince’s sister argues that it should be divided up among surviving beneficiaries and family, including herself and six siblings, the absence of a Will means that the case is not as cut and dry as she would hope.
A single line from the Prince Estate probate paperwork, suggests that the singer may have heirs and beneficiaries who need to be identified and located. There is a good chance that even if Prince’s estate were divided among his surviving family, the heirs and beneficiaries are likely to receive a significant payout.
While we cannot be sure what Prince envisioned for his estate in the event of his death, it is hard to argue against the value of having a Will given the ambiguity which plagues the future of his estate now.
5. Which document is right for me?
It is ultimately your personal choice whether to make both a Living Will and a Last Will and Testament, or just one or the other. However, it’s important to be aware that most estate planners advise clients to draw up both in order to ensure that your health care providers understand your treatment preferences and your loved ones understand how your property is to be disposed.
6. Final considerations
Making a Living Will and Last Will and Testament puts your future directly in your hands. It saves your loved ones from the stress of making decisions you would prefer to make on your behalf, and helps prevent the misfortune of your wishes regarding your palliative care falling on deaf ears.
Moreover, as Forbes suggests, estate planning can- somewhat paradoxically- be life-affirming, because “the process will allow you to take a closer look at the people you most care about in life—and ensure their future happiness”. While the topic of your future care may be difficult to broach, the value of legally documenting your preferences is clear.