WHAT IS A
LIVING WILL? A Closer Look at a Living Will – Its Different Types, Its Purpose – and Why It Should Be a Part of Every Comprehensive Estate Plan
By Larry Parman OKLAHOMA ESTATE PLANNING ATTORNEY
There are various different legally binding devices used in the field of estate planning. If you are a layperson it can all get rather confusing, especially if you are new to the subject. To complicate things further, some of the terms are overlapping. For example, there are different types of wills and trusts. With this in mind, we will be looking at living wills in this report.
DIFFERENT TYPES OF WILLS If you hear the term “will� as it applies to estate planning, you probably think of the last will or last will and testament. This is a legal device that is commonly used to state your final wishes with regard to the transfer of your assets. The assets in question remain in your possession throughout your life. After you die, the assets are distributed to the heirs according to your wishes as stated in the last will. There is another type of will that is less understood called an ethical will. These wills have been used since biblical times, but they are not legally binding. An ethical will is used to leave behind moral and spiritual values for the benefit of your loved ones. This can be quite a gift to share with those that you care about. There is also a type of will called a living will. A living will is an advance directive for health care. This type of will has nothing to do with the transfer of monetary assets. With a living will you record your preferences regarding the utilization of lifesupport measures such as artificial nutrition and respiration.
What Is a Living Will?
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Physicians may be able to keep you alive for an indefinite period of time when you cannot communicate, even if there is no hope of recovery. How would you like doctors to proceed under these circumstances? Would you want to be kept alive for months, years, or decades through the utilization of artificial measures? You can answer this question when you execute your living will.
CONSEQUENCES OF INACTION If you do not take the time to execute a living will, negative consequences could come about if you were to become incapacitated and unable to communicate. Your closest relative would be asked to make decisions about the utilization of life support. This is a very personal question. Putting a matter of life and death in the hands of someone else is rather unfair. Imagine the excruciating position that a loved one would be placed in if he or she had to make this decision without knowing exactly how you would have wanted to proceed.
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Even if the individual who was forced to make a decision found it to be an easy one, what about other members of the family? Everyone may not agree with regard to the proper course of action. As a result, there can be acrimony among family
members.
Infighting
among
members of the same family is never a good
thing.
However,
under
circumstances such as these, family members should be supporting one another. This is not a time for arguments, finger-pointing, and division. If you execute a living will, you can make sure that there is no cause for disagreements among your loved ones. In addition to this, you can rest assured that your own choices will hold sway if these unfortunate circumstances were to befall you.
HEALTH CARE PROXY While we are on the subject of living wills, we should mention another advance directive for health care called a health care proxy or durable power of attorney for health care. The living will is largely going to be centered around the question of the use of life-support measures. Other types of medical decisions could become necessary due to scenarios that have not been addressed in the living will.
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You could name someone to make these decisions on your behalf by executing a health care proxy or durable power of attorney. The decision-maker that you choose will be empowered to act for you if you cannot make decisions for yourself in real-time.
CONCLUSION A living will is an advance health care directive. It is used to record preferences regarding the utilization of artificial life-support measures. This advance directive should be a part of every comprehensive estate plan. If you do not have your advance directives in place, contact a licensed estate planning attorney as soon as possible.
REFERENCES American Bar Association http://www.americanbar.org/groups/law_aging/resources/consumer_s_toolkit _for_health_care_advance_planning.html Nolo http://www.nolo.com/legal-encyclopedia/living-will-power-attorney-medicalissues-29536.html
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About the Author Larry Parman After helping his own family deal with a lengthy probate and a battle with the IRS following his father’s death in a farm accident, Larry made a decision to help families create effective estate plans designed to reduce taxes, and minimize legal interference with the transfer of assets to one’s heirs, and protect his clients’ assets from predators and creditors. Following a dozen years in the investment banking and financial services business, in the mid-1980s Mr. Parman formed a law firm that gives families the peace of mind that comes from having created a premier estate and financial plan. After forming his law firm in 1984, he offered a series of public and private seminars to inform the public about using a Living Trust as the foundation of a family’s estate plan. Today, Parman & Easterday is one of the leading business and estate planning law firms in the Midwest. The firm’s primary focus is on business and estate planning, elder law, asset protection, and providing effective estate planning solutions for clients. Today, the firm’s premier estate plan design is referred to as a Legacy Wealth Plan. Mr. Parman is a frequent guest on the radio and can be seen on television talk shows explaining the importance of proper estate planning. Prosperity Productions selected Mr. Parman as a featured speaker in a nationally-recognized educational video on Living Trusts. He is the author of numerous published articles on financial and estate planning matters and the co-author of two books, Estate Planning Basics: A Crash Course in Safeguarding Your Legacy and Guiding Those Left Behind in Oklahoma: Settling the Affairs of Your Loved Ones. Mr. Parman is a member and Fellow of the American Academy of Estate Planning Attorneys. He is also a member of the Oklahoma and Missouri Bar Associations, the American Bar Association, and the Oklahoma City Estate Planning Council.
www.ParmanLaw.com OVERLAND PARK, KS 10740 Nall Avenue, Suite 160 Overland Park, KS 66211 Phone: (913) 385-9400 Fax: (913) 385-9422 What Is a Living Will?
OKLAHOMA CITY, OK 13913-B Quail Pointe Drive Oklahoma City, OK 73134 Phone: (405) 843-6100 Fax: (405) 917-7018 www.ParmanLaw.com
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