Planning for the inevitable: Living wills and more

Imagine you are biking down Beach Road. And then crunch. A car smacks into you because the driver was too busy looking at the otherworldly sunset. An ambulance races to the scene, and then transports you to the hospital. You’re unconscious and on death’s door. What kind of treatment will you get? What happens if you fall into a coma with little hope of waking up? And who decides?

If you’ve prepared ahead of time then these decisions—and more—have been made through either a living will, medical power of attorney, or both. If you haven’t prepared though, then expect a host of costs, delays, and frustration for you and your loved ones.

Let’s start with a living will. It should not be confused with your will (i.e., your last will and testament) or a living trust. Like a will or a living trust, a living will is a legal document. But they do different things. Wills and living trusts are primarily about transferring property after you die. A living will, by contrast, has nothing to do with who gets your stuff. And it has no impact on what happens after you die.

Instead, a living will is all about medical treatment when you are near death. That is, it instructs your doctors and loved ones about what you want—and don’t want—them to do to prolong your life if you can’t tell them. It comes into play, for example, if you are unconscious from an accident or under anesthesia from surgery.

Common topics in a living will include telling your doctors whether you want to be resuscitated and what to do if you can no longer feed yourself or breathe without the help of machines. Do you want them to keep these treatments up in hopes that you pull through? Or do you want them to pull the tubes and let nature take its course?

In other words, a living will is about terminal situations. It’s not about refusing life-saving treatment if there’s a genuine hope of recovery. So, don’t worry: Creating a living will won’t stop you from getting life-saving treatment; it will only address how to handle situations where you’re unlikely to ever get better.

Putting these decisions into writing is good for you and your family. It’s good for you because you make the decision. And it’s good for your family for the same reason. They don’t have to choose whether to let mom or dad die. The living will picks for them. And that eliminates a potential flashpoint for family conflict between those who want to end your pain and suffering versus those who want the hospital to do everything it can to help you cling to life.

But while a living will is invaluable, it’s also limited. It generally only applies when you are near death, in a coma, or in a persistent vegetative state. Those are important moments to be sure. But they are hardly the only scenarios that need to be addressed. What happens, for instance, if you have a stroke, dementia, Alzheimer’s disease, or Parkinson’s disease? In these cases, you may live for years but not be able to consistently or reliably express your wishes.

Enter the medical power of attorney (also known as the health care proxy or a health care power of attorney). This document appoints someone to make medical decisions for you if you become disabled, incapacitated, or incompetent but are not at death’s door.

Selecting the right health care agent is essential. They should live nearby, know you well, and have the competency to make smart medical decisions. They should also be strong enough to withstand pressure from doctors and family members. And, ideally, you should list three people—the primary person and two successors just in case someone is not able or willing to serve.

Because a living will and a medical power of attorney apply to different scenarios, people normally opt to create both documents. If you follow this well-worn path, be careful: Your instructions should be consistent. If your living will declares one thing and your medical power of attorney says another, you’re sowing unnecessary confusion during an emergency. In these cases, expect the instructions written in your living will to win.

Once you’ve created these documents, don’t be stingy. Give copies to relevant people. At a minimum, provide copies to your doctors, hospital, family members, and health care agent. It’s important that people have ready access to these documents before anything happens to you.

If you’d like to learn more about living wills, medical power of attorneys, and other ways to plan for the inevitable bumps in the road, make an appointment with a knowledgeable estate-planning attorney. You’ll be doing yourself and your loved ones a favor.

This column is for informational purposes only and is not intended to be taken as legal advice. For your specific case, consult a lawyer.