These two legal documents may have very similar names, but they have very different purposes.
A Living Will lets you outline your preferences for healthcare and personal treatment in case you are no longer able to express those wishes for yourself. A Last Will, also known as a Last Will and Testament, lets you spell out your wishes for who inherits your property, possessions, and financial assets when you die. You don’t need to make a choice between them, you really should have both in place.
See More: Who Needs an Estate Plan?
What is a Living Will?
When you create a Living Will, you choose someone you trust to make decisions about your healthcare if you are unable to communicate your desires for yourself.
This document first names a person to speak on your behalf, and gives them the permission to act on your behalf, and to access to your medical records. Through the Living Will you grant them the authority to speak to medical professionals about your care and to make decisions about the course of your care that must be complied with just as if you were able to communicate the decisions yourself.
Note: a Living Will goes by many different names; in Georgia it is most commonly known as an Advance Directive for Health Care.
Who Should you Choose as your Trustee?
It’s very likely that even the person closest to you may not know everything about how you want things handled with regards to your healthcare, treatment plans and end of life decisions.
A Living Will allows you to spell out for them exactly what you would want done in certain situations so there is no guessing about what you would have chosen. This includes what treatments you would want, and those you do NOT want.
This is often a great relief for your close family members who may not want to take on the responsibility and pressure of deciding what treatments to choose for you. It can also help your family to understand your desires without the potential for arguments between them in case they do not agree on a course of action.
A Living Will usually does not go into effect unless you become incapacitated – either through a progressive disease or suddenly due to an accident. It can cover your preferences with regard to many difference decisions including:
- Pain relief
- Feeding tubes
- Ventilation/Breathing tubes
- Dialysis
- Rehabilitation
- Hospice care
- and many other potential medical and other end-of-life decisions.
Having this document in place can help your family make decisions with the confidence that they are carrying out your wishes and not imposing their own.
What is a Last Will?
A Last Will, or Last Will and Testament – sometimes just called a “Will” – spells out specifically how you want your property distributed when you die. You can make clear how to handle your real property, personal possessions, and your financial assets. You can leave your assets to whomever you wish, if it is memorialized clearly and carefully in your Will. If, however, you die without a Will in place, your things will be divided among your next of kin, regardless of what you might have wanted.
When you set up your Will, you will choose a trusted person or institution to be your executor. The executor is responsible to see to it that your wishes are carried out. They will be the one that distributes your assets, pays your debts, including any taxes you might owe, close accounts, and more.
In your Will, you can:
- Specify who gets your assets, how much they get, and how it is conveyed to them
- Create trusts to provide for minor children
- Name guardians to care for your minor children
- Provide for grandchildren
- Choose beneficiaries (the people or organizations who “benefit” from your gift) beyond your family and even designate charities to receive portions or all of your estate.
See More: Talk to Your Heirs About Your Estate Plan
So do I need a Living Will, or a Last Will?
Both of these documents make your wishes known to your loved ones, and to others who need to know. But one works while you are still alive, and the other takes over when you die. So the answer, in short, is…
You need both!
If you have questions about preparing a Living Will or a Last Will, schedule a phone or video consultation with Siedentopf Law to talk about how to communicate your wishes and desires.
