A living will is not a legally required document for anyone. And, as with many forms of estate planning, it can be hard to think about protecting yourself and your assets if something happens to you. But while it seems easier to skip the living will, there are many good reasons to develop one, both for you and your loved ones.
What Is a Living Will?
Unlike wills that arrange for the distribution of assets after someone’s death (often called a last will or last will and testament), a living will registers a person’s wishes in terms of what they want (or don’t want) done for them in terms of medical treatment if they become unable to make or articulate those decisions themselves. That can include decisions about whether or not someone should be intubated or fitted with an eating tube, given various medications, or have extraordinary measures taken to extend their life.
Sometimes people procrastinate arranging a living will because they’re young and healthy and think they won’t need one for years, if not decades. Unfortunately, it’s not just elderly or very sick people who benefit from having a living will. A severe car accident or an unexpected and undiagnosed heart condition can make such a will necessary; if one isn’t available, the patient may not have their wishes recognized. It also causes considerable stress for families and loved ones who may be in the position of having to make those decisions, especially if various family members don’t agree with each other as to what should be done.
Is a Living Will the Same as a Power of Attorney?
No. A living will is designed to make the person’s medical and end-of-life wishes clear. It doesn’t require someone be named to carry out the will. That said, a healthcare power of attorney can specify someone to oversee the living will. Having both can be helpful, especially if there are family members who don’t agree with the person’s wishes and may try to override them.
How Do I Get a Living Will in Missouri?
It’s possible to download free templates online to create a living will, but for something as important as this, working with an experienced attorney to make sure everything is spelled out clearly and following the state’s requirements is advisable. Missouri has several requirements for a living will to be valid, and they include:
- The person drawing up the living will must be at least 18 years of age, authorized to make their own medical decisions, and not incapacitated or otherwise unable to make decisions on their own behalf.
- The will must be witnessed and signed by two other people, also at least 18 years old, who are not family members, people who would benefit from the estate if the person dies, or anyone with financial responsibility for the person’s health care.
- The will must be in writing (which means simply telling someone your wishes doesn’t make it legally binding) and dated.
- The person covered in the living will must sign it.
When Does a Living Will Become Active?
The living will only goes into effect when the person who drew it up either becomes unable to make decisions on their own (such as someone who has a stroke and can no longer speak or who’s in a coma) or has been diagnosed as being terminally ill with no chance of recovery.
Just because it doesn’t go into effect until those stages doesn’t mean it’s not legally binding. If someone changes their mind about various aspects of the will while they’re still able to, they need to destroy the original and draft a new one, following the criteria above.
It’s important to note that living wills don’t apply to pregnant women.
What Should I Consider When Thinking about Setting up a Living Will?
There are several recommended steps before actually drawing up the will. Some of these steps can be emotionally difficult, but they’re important in order to make the right people aware of the wishes and what’s in the living will if it needs to go into effect.
Talk to your doctor. The list of medical care and treatments that are considered invasive or life-prolonging is long and can be confusing. A primary care doctor can help explain what the different potential treatments are, what outcomes might be, how invasive they are, and if they’re recommended. If someone is drawing up a living will when they’ve already received a terminal diagnosis, they can talk to the specialist (such as an oncologist) who will have more specific information.
Talk to your family and friends. This can be difficult when some family or friends have different wishes or religious beliefs. Be clear about what your wishes are and make sure they understand you’re drawing up a legal document that reflects them. If you’re also setting up a health care power of attorney, go over this carefully with them to be sure they’re willing to enforce it.
Once these steps are done, contact a lawyer (see below) to finalize the document. Once it’s complete, there are several places and people who should be given copies: Primary care or specialty physicians, hospital files if applicable, the person designated as power of attorney, and immediate family members.
What Do I Need to Do to Set Up a Living Will?
Call us at 601-353-8504 for a free, in-depth, no-obligation case evaluation. We have considerable experience with estate planning and all types of wills. We know these are difficult decisions, and we have not only the knowledge to help you, but compassion for the decisions that need to be made.