One of the many challenges of estate and life planning is that there are many documents that seem similar but serve very different purposes. For instance, it is easy to confuse the terms living will and last will and testament, but they are completely separate legal documents that meet different needs. As such, it is important to remember these differences to ensure that you are filling out the right document for your specific circumstances.
What is a Living Will?
A living will also referred to as an advance directive, is a legal document that usually provides directives regarding the course of treatment that both healthcare providers and caregivers are expected to follow if someone is dying or permanently unconscious and cannot make decisions about emergency treatment.1 This includes any procedures one would or would not like to be performed.2 However, the living will is only acted upon if the person in question is unable to speak or otherwise communicate their preferences for themself. The details of a living will often include considerations such as whether the person would like life-sustaining medical treatments or feeding and breathing tubes to be used.3
With a living will, an attorney-in-fact is named to represent the interests of the living will’s owner.4 This agent communicates with doctors and other medical personnel regarding their client’s wishes as expressed in the living will. Additionally, in most cases when a living will is involved, it is common to also establish a medical power of attorney (medical POA, sometimes called a health care proxy), which grants your agent the authority to make healthcare decisions for you.5 This ensures that even if something isn’t directly covered in the living will, the agent has the authority to make important medical decisions.6
What is a Last Will & Testament?
A testamentary will, also known as a last will and testament, is a legal document that is used to transfer the testators’ assets to their beneficiaries after death. Testamentary wills can also be used to appoint guardians for minors, name the executors who carry out the will’s directions, and set up trusts for beneficiaries.7 A testamentary will is generally seen as the “traditional” example of a will, in contrast to more specialized documents like mirror wills or joint wills.
How Do They Compare?
Outside of the name, there’s very little room for comparison between a living will and a last will and testament. A will and testament dictates the way that your assets will be distributed and utilized following your death, while a living will state your wishes regarding your medical care in the event that you are unable to communicate your wishes. In that regard, a living will is atypical of most other types of wills: a will is typically a document that focuses on posthumous decisions.
In contrast, a living will (as the name implies) mainly sets legal requirements that apply while someone is still alive. There are exceptions to this: after death, a living will grant consent to an autopsy, bequeath anatomical gifts, or direct the disposition of the writer’s remains. Even still, the main focus of a living will is to guarantee the owner’s medical wishes are followed while they are still alive.
How Do They Complement Each Other?
Ultimately, a living will and a last will and testament aren’t two documents that you need to choose between. In fact, it is generally a good idea to arrange for both, as they are two of the most important legal documents that any adult can have. They both ensure that your wishes are being followed during different stages of your life. With a living will, you make certain that in a worst-case scenario, you’ll receive the kind of medical and healthcare that you want, while a testamentary will sets clear guidelines for what happens to your assets when you’re gone, eliminating many of the frustrations and expenses that your loved ones would otherwise be stuck with.
So if you lack a living will or a testamentary will, now is a good time to get started.
Endnotes
1. U.S. Department of Health and Human Services. (n.d.). Advance Care Planning: Health Care Directives. National Institute on Aging. https://www.nia.nih.gov/health/advance-care-planning-health-care-directives.
2. Advance Directives: Healthcare Proxy, Living Will, POA. Hospital for Special Surgery. (n.d.). https://www.hss.edu/advance-directives.asp
3. Kaminsky, M. (2021, June 8). What Is the Difference Between a Living Will and a Last Will and Testament? LegalZoom. https://www.legalzoom.com/articles/what-is-the-difference-between-a-living-will-and-a-last-will-and-testament.
4. Kaminsky, M.
5. Kagan, J. (2021, May 19). Power of Attorney: Allowing One Person to Act on Behalf of Another. Investopedia. https://www.investopedia.com/terms/p/powerofattorney.asp.
6. Irving, S. (2020, August 11). The Durable Power of Attorney: Health Care and Finances. NOLO. https://www.nolo.com/legal-encyclopedia/durable-power-of-attorney-health-finances-29579.html.
7. Kagan, J. (2021, June 9). Testamentary Will. Investopedia. https://www.investopedia.com/terms/t/testamentary-will.asp.
About the author
Founder/Attorney, CCSK Law
I create customized solutions for families to address their planning needs.
I provide plans clients understand. Also, they make sure they know when to use them, and do so affordably. I love the opportunity to break through the legal jargon to clarify issues. We find success when we work through a person’s situation and put the law to work for them.
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