Living Will - Trust and Estate Planning Law Office

The Difference Between a Living Will And Last Will And Testament

Estate planning is an essential process in which individuals make decisions regarding their asset distribution and future health care arrangements. Within the area of estate planning, there are two crucial legal documents to understand: the living will and the last will and testament. By understanding these documents, you will be better equipped to create an estate plan which accurately represents your financial desires after passing away. Below, the trust and estate planning office will explore the intricacies of a living will and a last will and testament and elaborate on the key points of each document as well as their differences.

Understanding a Living Will

A living will refers to a legal document which establishes an individual’s medical preferences in the event that they are incapable of communication or incapacitated. A living will is effective during an individual's lifetime, and is only effective in the event that you are unable to make medical decisions for yourself. This document also includes a healthcare proxy, or someone who will make medical decisions on your behalf aside from those included in your living will if you are unable to do so. A living will specifically focuses on predetermined medical directives in order to guide loved ones and medical personnel during treatment.

Key Points of a Living Will

One of the key aspects of your living will be your preference for certain medical treatments. These medical treatments may include life sustaining treatment, organ donation, resuscitation, pain management or mechanical ventilation. Your living will outlines your desires for how medical professionals will go about your treatment plan. Another essential aspect of a living will is the designation of your healthcare proxy. As stated above, your healthcare proxy will step in to make medical decisions on your behalf that you do not previously specify. Unlike a last will and testament, a living will takes effect when you are incapacitated or you are not in the state to make medical decisions. This includes neurological conditions in which an individual has a functioning brain stem but lacks cognitive function, otherwise known as a vegetative state. It also takes effect in the event of a coma and, in some states, terminal illness.

Understanding Last Will and Testament

A last will and testament is a legal document in which a testator, or the individual writing the will, outlines how they would like their assets to be distributed after their passing. Unlike a living will, a last will is only effective after death. There are multiple important decisions outlined in a last will, including the appointment of an executor, who will ensure your will is carried out and your assets are distributed accordingly. A last will is also how you can designate guardians for any minor children as well as the assets you would like to distribute and the beneficiaries who will inherit them. Asset distribution is one of the key components of a last will and testament. By writing one, you ensure that after your death, your assets are given to people of your choosing.

The Difference Between The Two

Although similar in name, these documents are drastically different, and it is important to understand the unique functions of each before planning your estate. While a living will outlines the healthcare directives and medical preferences in the event that you are incapacitated and unable to make medical decisions for yourself, a last will and testament outlines what you would like to do with your assets after your death. Another key difference between these two documents is when they take effect. A living will takes effect while you are alive and is only effective in the event that you are incapable of making your own medical decisions. A last will and testament is only effective after your death.

Understanding the distinction between a living will and last will and testament is essential to make informed decisions regarding the protection of your assets and loved ones. While a living will addresses your healthcare preferences and ensures that your choices are respected regardless of your condition, a last will and testament protects your assets and allows you to designate beneficiaries for your estate. Learning about the unique functions of these documents will provide you with the opportunity to plan your estate with clarity. Consulting with a knowledgeable estate planning attorney will provide you with peace of mind during this decision-making process. For all your estate planning needs, contact the Trust and Estate Planning Office at (718) 333–2395.

What is a Health Care Proxy, Living Will and Durable Power of Attorney?

As you get older, you may come to realize that you or your loved ones will eventually be unable to make major decisions on their own. Before that time comes, it is common that people consider a health care proxy, living will, or power of attorney. However, many people are unaware of the significance that these documents hold. It is important to understand the difference among these various forms depending on what you and your loved ones want.

Health Care Proxy

A health care proxy is a document that directs who will make your medical decisions for you after you are deemed to be unable to make your own decisions by a physician. Usually a family member or trusted friend is assigned this role to execute medical decisions of your best interest when you are unable to. You will be able to continue to make your own choices as long as you are still in the right state of mind. For example, if you were to fall into a coma, the health care proxy you appointed would take the steps necessary as per your wishes in this unexpected situation.

Living Will

A living will is simply a document that contains your medical wishes written for family members, friends, and health care facilities. In the situation that you will be unable to communicate your health care wishes, this document should give loved ones and others an idea of what you would have wanted. This document does not appoint anyone to oversee and speak on your behalf. It is purely a document stating your medical wishes.

Durable Power of Attorney

A durable power of attorney assigns a person (or people) to make financial decisions unrelated to making health care decisions for you. This includes factors such as paying your bills and can even include managing real estate and other assets. It is possible for the health care proxy to overlap with the power of attorney but there is a separation between the two. Power of attorney relates to financial matters while a health care proxy is exclusively medical decisions.

To summarize: a health care proxy dictates who makes your medical decisions (in both predicted and unexpected events) while a durable power of attorney dictates who will make your financial decisions for you. In addition, a living will is just your medical wishes on paper for any possible event that may arise.

A factor that people tend to forget is that an agents’ authority can be temporary as well as permanent depending on the situation. In the situation where you may be physically incapacitated for a limited amount of time, the agents’ are able to make decisions for you during the time you are unconscious. After you wake up, they lose their authority. In permanent situations such as being in a vegetative state, suffering from Alzheimer's, or otherwise, agents will be allowed to be authorized to make decisions on your behalf.

It is crucial to consider which loved ones would be the most suitable to carry these forms of authority. These kinds of documents may save trouble in the future in case anything arises. For more information on health care proxies or estate planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

3 Legal Documents Caregivers Need to Manage an Elder’s Healthcare

Laws tend to be very strict and there is not much flexibility when it pertains to a loved one’s healthcare. These laws involve who can make medical decisions, receive status updates, and be involved in conversations with medical professionals. Though these laws intend to keep confidential information private, they can be troublesome for those who are caregivers for their family. There are ways around this but the legal permissions must be established beforehand. If you wait until they are required, you will not be guaranteed the best outcome as they will be more effective if prepared in advance. Many families do not realize they require legal documents to take care of the ones they love, causing them a handful of stressful situations when they need to make medical decisions for a loved one but aren’t allowed to legally. This may lead to a situation where you are legally not allowed to make any medical decisions for them or even access their medical information. An option some individuals choose is going to court and petitioning for guardianship in order to allow them to be able to make these decisions. This all could be avoided if families work and prepare all the necessary documents in advance with an Elder Care attorney, so you aren’t stuck with the harder and more expensive option of petitioning for guardianship.

What Three Documents Are Needed?

HIPAA Authorization Form: This document which is short for the Health Information Portability and Accountability Act indicates the standards for keeping an individual’s medical information and all records private. This makes it illegal for any medical professional to release your medical information and records without it being at the request of the patient for which this form is used. This is a very important form, and all families should be in possession of it as HIPPA forms give authorization to doctors to keep specific family members informed of their loved one’s medical status. It is a simple form that is not hard to complete and a blank one should be available at most doctor’s offices for patients. Just let your loved one sign the form and this will provide you with access to all their healthcare information.
Power of Attorney: This document has many names, two of them being, medical power of attorney and health care proxy document. This document essentially allows an individual to designate a loved one or any one of their choosing to handle healthcare decisions on their behalf if they become unable to. With a HIPAA form, you are allowed to have access to an individual’s medical records and information, but with a power of attorney you are also designated to make medical and healthcare decisions on their behalf as well. When preparing this document though, the person granting this access must be in the right mind or this document can not be executed. This is to ensure the individual who needs the care is choosing a trusted individual that they believe will honor their wishes if they were to become incapacitated.
Advance Health Care Directive: This document is also known as a Living Will, and allows an individual to indicate their wishes for end-of-life care before any medical emergency. End-of-life decisions are extremely hard on families and a Living Will will help avoid the pain this brings to your loved ones and allows them to know what you would have wanted. This document can specify the treatments you want or do not want and other medical decisions. One of the most important parts of this document is for an individual to indicate if they want any form of resuscitation to occur if they stop breathing and if they agree to be put on a life support system if needed. These decisions are extremely difficult to make and should not be left for your family, as it will only make the situation harder when you can make it simple by preparing these documents in advance.

Preparation in Advance Is Necessary

It is extremely important for these documents to be prepared beforehand as they will be there if a medical crisis occurs in your loved one’s life. Once a healthcare emergency occurs, it will be too late to prepare these documents. Sitting down with your family and having a conversation about preparing these documents in case a situation may occur in the future, will spare you and your family from any unnecessary stress and uncertainty. Health is not guaranteed so all adults should discuss their wishes with their families while they still have their health.

How Can an Elder Attorney Help

Unfortunately, many families do not start to look into Elder Care planning until a medical crisis occurs. This is why this conversation should happen in advance in order to ensure this crucial step of Elder Care planning is in place and your loved ones are taken care of. Indicating your interests is the first step to take in your Elder Care planning journey. An Elder Care Attorney can help make this process easier and help you and your family stay informed of all your options to ensure your interests are met. An attorney will not only draft all these crucial documents but will help ensure these documents are accurate and legally binding. Having this conversation with your family is hard enough, so hiring an Elder Care attorney will allow you to create the best plan and guarantee you won’t have to worry if you or your family face a medical crisis. As a part of your Elder Care planning, an attorney will help with the HIPAA forms, drafting of the Power of Attorney, and drafting of the Living Will, so you and your family have the peace of mind that there is a plan in place in case of medical emergencies.

For further information on how to start your Elder Care planning please contact the Law Office of Inna Fershteyn at 718-333-2395 to obtain aid in the drafting of legal documents and help with any of your Elder Care needs.

How to Prepare a Loved One for the Possibility of Dementia?

Everything in life isn’t guaranteed and a life, where the best for you and your loved ones is not ensured, is scary. Having a plan for when those unexpected times arise in your life is the best way to ensure you and your loved ones are taken care of. Those approaching their elder years should be one of the first to ensure these plans are in place. Events such as an accident, stroke, heart attack, or something as serious as dementia can be extremely troublesome without the best plan in place. Not only should you consider making plans for your own well-being but encourage your loved ones to do so as well. This will ensure that a designated individual will be able to step in when times like this may occur in your life.

Discussing Legal, Financial, and Health Care Planning With Loved Ones

Though having such a difficult conversation with the people you love may be uncomfortable, the end goal is for you and your family to ensure everyone is taken care of, no matter what obstacles life throws at you. If you wait until your loved one is incapacitated or needs a caregiver it will be extremely hard, legally and emotionally, to be able to care for them when they need you the most. If this occurs you would need to endure the lengthy and complex process of guardianship in order to be able to control a loved one’s medical care and finances. Why put you and your family through this process when you can make a plan beforehand.

Timing Is Extremely Important

Getting your Elder Care planning done in advance is crucial, as in order to be able to sign all the legal documents in the process, one must be physically and mentally able to. In instances such as Dementia, early diagnosis can still hinder an individual’s ability to make decisions. In some cases, a senior may still be able to sign legal documents but this all depends on the progression of the disease and circumstances differ. This actively demonstrates why it is important to plan earlier rather than later. Though it can be difficult to bring up these matters with a loved one, you should try to make it clear that you intend to protect them and ensure that all their assets and life are put in the best scenario possible.

Crucial Documents Needed for Elder Care Planning

Last Will and Testament: A last will and testament is the first step in any Elder Care planning and indicates your wishes when you pass. This document indicates what is done with your assets and ensures your interests are met. We never know when we may pass and this document makes sure not only your interests are met but your loved ones are taken care of when this happens.
Durable Power of Attorney for Health Care: This is a document that will allow an individual to designate a person to make any medical decisions for them if they become incapacitated or unable to. Some decisions include choosing health care providers, nursing care, treatment, and end-of-life care. This document allows the individual to obtain medical records on your behalf as well. This is ideal for anyone as health can change, especially as you continue to get older, and this document will make sure you are taken care of if things don’t go as planned. Those with Dementia are not guaranteed a specific time frame for how fast the disease will progress so having a Health Care Power of Attorney will give them and their loved ones peace of mind when their loved one can no longer make decisions for themselves.
Durable Power of Attorney for Finances: This is a document similar to the Power of Attorney for Health Care, and allows you to designate an individual to make financial decisions for you when you become unable to do so for yourself. Some decisions that can be made on your behalf with this document include managing investments, selling property, taxes, and paying bills. This document is needed, as not only will your estate and assets be protected, but your interests will also be met if you ever become incapacitated. Why let a disease like Dementia or a medical condition stop your family from making sure your assets are taken care of when you can plan ahead.
Living Will: A living will is a healthcare directive that is drafted in advance to indicate an individual’s wish for end-of-life care or a serious medical crisis. This will be a clear indication of what you want to be done in regards to treatment if you are unable to and if the situation is life-ending. This document contains the instructions for the medical Power of Attorney and is important in the Elder Care planning process as leaving decisions like this to your loved ones will cause an immense amount of pain and regret. Your loved ones will not be left wondering what you would have wanted, but instead, know exactly what you want.

Hiring an Elder Care Attorney

Elder Care planning is hard on families and may not be the desired conversation, but it’s definitely a crucial step to ensuring your loved ones and you are taken care of at all times. Sitting down and creating a plan for what will happen in times of illness or losses is the start of your Elder Care planning. An Elder Care attorney can help make this process easier and ensure all your interests are met in a professional and legally binding manner. An attorney will inform you of all your options, and ensure all documents are legally binding and accurate. Discussing Elder Care options is hard enough for you and your family that’s why hiring an Elder Care attorney will allow you the peace of mind that your plans are in place in times of hardship. An attorney will help with the drafting of your Last will and testament, Power of Attorneys, and Living will, so you are ensured the best care.