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Originally Posted On: Living Will vs. Living Trust: What’s the Difference? – De Bruin Law Firm
Are you in South Carolina, wondering how to plan your estate?
You’ve probably at least thought about writing a traditional will or perhaps a living trust. Have you also considered writing a living will?
You may be unsure what a living will is, and that might be why so few US citizens have one. Only 25% of Americans create a living will. Without this important document, your loved ones may face heart-wrenching dilemmas at the worst possible time.
We’re going to explain what a living will is, its function, and how it differs from similar documents you might have heard of. Read on!
What Is a Living Will?
A living will is a legal document that’s also sometimes referred to as an “advance health care directive” or “advance directive.” We’ll cover the subtle differences later.
The living will is a document of your directions concerning medical decisions. These directions represent your intended actions that medical staff should follow. Simply put, it’s a blueprint for medical staff or other care providers during life-or-death scenarios.
Your living will is only in effect when you face a serious health crisis and will be unable to effectively guide treatment yourself. This could mean you are permanently unconscious, suffering a terminal illness, receive a serious mortal injury, or experience advanced dementia.
These decisions are of particular importance when it comes to life-prolonging treatments or procedures. The living will is designed to deal with situations where death is imminent unless there is medical intervention.
Also, it may record your preferences regarding how medical staff will manage your pain.
The Function of a Living Will
A living will can lift weighty-decisions off of the shoulders of your family and/or your care team.
This document makes your decisions a legal requirement because these choices can be hard for family or friends to make. This is sometimes still true, even when your wishes are already known to them.
It can prevent any fear, regret, or guilt from manifesting. Confusing thoughts and feelings like these might otherwise stem from uncertainty. This might compound with grief after your death, resulting in greater emotional pain.
This document removes the ambiguity that could lead to conflict over which course of action to take.
You shouldn’t delay writing a living will until your senior years. A medical emergency, or any other tragedy, could strike at a moment’s notice. If you’re 18 or older and not cognitively-impaired, you should consider creating one now.
Remember that a living will is only enacted if you lose your ability to indicate your choices. A medical and legal determination of this fact may be necessary, based on the criteria set out by federal and state laws. Your medical staff needs to be convinced that you cannot understand or communicate your decisions, even through non-verbal means.
Under these circumstances, a nominated person can make choices for you, other than those regarding life support.
Last Wills and Advanced Directives
Writing a will, otherwise known as a “last will” (and testament), indicates your wishes regarding actions taken after you die. These decisions are made regarding assets (including possessions and property), debts, and guardianship of any legal dependents.
By contrast, a living will is only able to dictate your wishes regarding health care decisions or those who will make those decisions for you during your lifetime. A living will is also referred to by other names, depending on the state you live in. Alternative names include “personal directive” and “directive to physician.”
The term “advanced medical directive” or simply “advanced directive” is sometimes used in place of “living will.” A living will comes under the category of advanced directive. An advanced directive may contain extra documents, such as a “do not resuscitate” order (DNR).
A DNR requires a medical consultation and for documents to be signed by a doctor. These documents concern efforts to reestablish your breathing or cardiac activity in the event of a medical emergency.
A living will only dictates resuscitation under specific scenarios. CPR (restarting the heart with electrical stimulation) carries a risk for some seniors, so this sometimes motivates a DNR order. An advanced directive may also contain a medical power of attorney, which dictates who will become your trusted healthcare agent when incapacitated.
Living Trust or Living Will?
A “revocable living trust,” or simply “living trust” is like a last will. Writing a trust regards decisions relating to the distribution of assets after death.
The word “revocable” is there because revisions can be made during your lifetime since the document is not in effect until after death.
Within the document, an individual trustee is appointed to oversee the division of assets. A co-grantor or co-trustees are also appointed, to fund and manage the living trust together. The reason for two is in case of incapacitation.
A living trust is used by individuals with complex estates, to avoid probate.
A last will becomes public property after death, but a living trust does not. A living trust allows assets to be redistributed more quickly and with less expense.
The focus of a living will helps to clarify:
- Surgeries or procedures you opt to forgo
- Your decisions for various life-extension scenarios
- Your choices regarding any active health conditions
- Whether you would opt for kidney dialysis
- Any end-of-life/palliative decisions
- Pain management considerations
- Use of artificial hydration
- Whether to perform tests or blood transfusions
- Your wishes regarding the use of drugs
- Instructions about supported breathing
- If an intravenous feeding tube should be used
Your living will might also dictate your choice of a natural death versus extending your life or prolonging the dying process. It might also specify whether you stay in the hospital or receive comfort care in a home environment.
Importantly, this document supersedes the medical decisions that would otherwise be made, due to legal requirements. Having an attorney create a living will is an important part of your estate planning.
Write Your Living Will
We’ve shown that a living will is a vital document that can relieve the burden of difficult decisions from family and friends. Don’t let your loved ones struggle with carrying out your wishes when you can’t communicate them.
If you’re in South Carolina and need to plan your estate, we can help. We are a full-service law firm that specializes in last wills, trusts, living wills, and power of attorney. We proudly serve Greenville, SC, and the surrounding upstate area.
Contact us today to schedule a consultation.