Dear Mr. Cretsinger:

 

What is a living will?  Is it similar to a living trust?

 

I’m glad you asked this question because it gives me an opportunity to talk about an aspect of estate planning that is often overlooked.

 

A living will and a living trust are both estate planning documents, but the two are very different from each other.  (Don’t let the names fool you.)

 

A living trust is simply a different way to own property.  When you transfer property to the trust, you no longer own the assets directly.  During your lifetime, you “own” and control the assets as trustee of the trust.  When you die the assets are transferred to your heirs.  A living trust is sometimes called a revocable living trust or an inter vivos trust.

 

A living will addresses an entirely different issue.  It has nothing to do with the transfer of wealth.  A living will is the common name given to a document called a “directive to physicians.”  It’s one of several documents (known as “advance directives”) that you can use to communicate with your doctor about health care.  If you’re unable to talk to your doctor because of some mental or physical disability, the advance directives can speak for you on a wide range of issues.

 

The two most common advance directives used in estate planning are the medical power of attorney and the living will.

 

A medical power of attorney is a document that gives someone else the authority to make health care decisions for you.  This person (known as your “agent”) can approve – or refuse – any medical treatment.  He has the power to make any decision that you could.  But he has no authority until your doctor decides that you have lost the ability to make your own decisions.  You do not give up the right to speak for yourself by signing the power of attorney.  You can make your own decisions as long as you are competent.

 

A medical power of attorney covers a broad range of medical issues that might arise in the future.  But the scope of a living will is limited.  A living will is used to communicate with your doctor about one thing: the use of life support.  If you’ve been diagnosed with a terminal illness or an irreversible condition, and you can’t communicate with your doctor, a living will can speak for you.  You can tell your doctor to either treat you with life support or to remove it.

 

If you already have a medical power of attorney, the person you name as your agent can make decisions for you about life support – even if you don’t have a living will.  But I strongly recommend that you have a medical power of attorney and a living will as part of your estate plan.

 

Why?  Consider the following.

 

Let’s assume that you’ve named your spouse (or a close family member) to act as your agent under a medical power of attorney.  And let’s also assume that you don’t have a living will.  If you were terminally ill and unconscious, and your doctor did not expect you to recover, think of the tremendous burden on your agent.  Think about the difficulty in making a decision – during a time of grief – to remove life support from a loved one.  If you have a living will, you ease the burden on your family by making the decision for them.

 

Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney. You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.