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Living Wills: Ten Things You Need to Know

May 29, 2023Filed Under: Estate Planning

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How would you decide how to care for yourself if you were seriously ill or accidentally injured? You don’t have to be old to become incapacitated. A living will, a component of an advance health care directive, can outline your wishes so that your loved ones can make informed decisions about your care in an emergency.

Your living will doesn’t passes assets and property to beneficiaries like a standard will. Instead, it advises your doctors and family about how you want to receive medical care and may limit certain treatments. Your living will can bring your family comfort in times of uncertainty, knowing they understand your healthcare wishes. Creating your living will can bring peace of mind knowing there is a plan for medical emergencies. There are ten things you should know about living wills:

1.    Rules for Living Wills Vary by State

Depending on your residential state, this document may be referred to as an advance directive. Each state has different requirements and procedures for a living will’s creation and execution.

If you spend significant amounts of time in another state, ensure your living will is valid in the second state. Most states (but not all) will accept a living will from another state if it is valid in the state where it was created. Check with your attorney about your state’s rules. If you spend significant time out of the country, you want to know the country’s laws to create a valid living will while there.

2.    Your Living Will is a Binding Legal Document

Do not rely on an informally written document or verbal consent as your living will. Before you become incapacitated, you must document your healthcare wishes in compliance with state law and legally address instances of incapacitation, permanent unconsciousness, or a terminally ill diagnosis.

3.    Medical Doctors Determine the Incidence of Incapacitation

Whether terminally ill, permanently unconscious, unable to communicate, or incapable of making rational decisions due to injury, a medical doctor’s assessment, and usually a second opinion, is the determining factor putting your living will into effect. If you see your doctor regularly, discuss your wishes and living will ahead of time to see if they will comply with your instructions or if there is something to talk through.

4.    You Can Change Your Living Will

You can revoke, revise, or create a new living will at any time. However, simply destroying the old copy complicates the connection it may have to other estate planning documents or files. Your attorney can help you fully and formally revoke or modify your living will correctly.

5.    There is a Difference Between an Advance Directive and a Living Will

There are numerous advance directive document types as it is a broad category of legal instructions regarding your healthcare. The more familiar include a medical power of attorney, living will, and do not resuscitate order (DNR). A living will is a subset of the advance directive specifically expressing medical treatment preferences in the case of terminal illness or incapacitation.

6.    Younger People Need a Living Will

Adults of all ages can benefit from implementing this legal document. Seemingly healthy young individuals can become unexpectedly ill or injured. Procrastinating about creating your living will until you get “old” could leave you in an unfortunate situation after an accident or serious illness.

A living will does more than convey your desire to remove yourself from life support under certain conditions. It can specify treatment and care preferences, including medical techniques and devices you accept (or do not), pain management, and clergy visitation.

7.    You May Appoint a Healthcare Agent

You may choose a healthcare agent. The agent may not be your doctor or medical team to avoid conflict of interest. Nor can they own, manage, or work for the facility where you receive treatment. Often, a family member who you trust with the significant responsibility of handling stressful emergencies will accept this role — review your emergency, critical, and end-of-life care preferences with them.

8.    Have a Healthcare Power of Attorney

This power provides an individual the right to make medical decisions on your behalf if you cannot do so. Appointing a healthcare power of attorney is not the same as your living will, but it is part of the estate planning process.

9.    Will the Medical Staff and My Family Comply with My Living Will?

Ultimately your medical doctor is responsible for your course of treatment. They technically do not have to follow your living will, yet most will. However, in an emergency, your doctor’s choice may override your living will if they feel an ethical obligation to the Hippocratic oath. Talking to your doctor about your choices in advance and sharing access to your medical history with family members using a HIPAA form are your best courses of action to feel secure that everyone will comply with your wishes.

Having a living will is essential to a complete estate plan. Creating this document with your estate planning attorney can bring you and your family peace of mind.

We hope you found this article helpful. If you’d like to discuss your particular situation, please don’t hesitate to reach out. Please contact our Cincinnati office by calling us at 513-771-2444 and schedule a consultation. We look forward to the opportunity to work with you.

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How Do Advance Directives Work?

September 26, 2022Filed Under: Estate Planning

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Winnie’s nursing home room door is open, and Kevin is standing in front of it, tears running down his cheeks. The medical staff just finished inserted a feeding tube into Winnie – an act Kevin knew she didn’t want. Unfortunately, Winnie couldn’t express her wishes due to advanced dementia, and she had no legal documents that expressed her wishes not to be fed by artificial means.  Kevin had no choice but to sit back and watch his wife go through a procedure she didn’t want.

The situation with Kevin and Winnie could have been avoided through the use of proper advance directive. An advance directive is actually a collection of documents. What that includes differs depending on your needs and wishes, along with what the law allows. However, it usually means at least a Living Will, and a Power of Attorney for Healthcare.

The purpose of this set of documents is to allow you to control what happens to your health care in case you cannot speak for yourself. If certain criteria are met, your doctors must consult with your advanced directive before making decisions about your care.

Usually, what this means is that two doctors agree that an individual is terminally ill, permanently unconscious, or at the “end-stage” of a condition. Once that happens, and the individual cannot express their preferences, doctors turn to the advance directive to figure out what the individual wants.

A Living Will determines what happens to an individual making it, unlike a Last Will and Testament, which determines what happens to their money and possessions. A Living Will describes what healthcare providers can and cannot do to prolong your life and/or ease your pain when you cannot express those preferences yourself. For example, do you want to be placed on a ventilator if you cannot breathe on your own? Do you want a feeding tube and IVs set up, and if so, for how long? Do you want to be an organ or tissue donor?

A Durable Power of Attorney for Healthcare lets you choose someone to make healthcare decisions for you when you cannot. They still must follow your Living Will, but they will be able to make decisions not explicitly considered by your Living Will, in accordance with the facts of the situation. In most states, there are “default surrogate consent laws” which allow family members to make treatment decisions on your behalf, but who is chosen to make these decisions and what they choose to do may not be in accordance with your wishes, as it hopefully would be with a Durable Power of Attorney.

Other documents may be part of an advance directive by law, or they may be worth including of your own volition. These include Do Not Resuscitate orders and Physician Orders for Life-Sustaining Treatment, among others. You might also consider an advance directive in case of a mental health crisis.

This is a difficult subject to consider, and it always seems like it won’t be necessary. But nearly 70 percent of Americans don’t have plans in place for a worst-case scenario, which means for some of them, decisions may be made for them with which they would not agree if they had the capacity to choose. For that reason, it is worth thinking about implementing an advance directive even if it seems unnecessary now.

If you or a loved one would like more information about advance directives, please don’t hesitate to reach out. Please contact our Cincinnati office by calling us at 513-771-2444 with any questions.

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Olivia K. Smith, Attorney at Law
Cornetet, Meyer, Rush & Stapleton Co., L.P.A.
123 Boggs Lane,
Cincinnati, Ohio 45246
Tel: (513) 771-2444
Fax: (877) 483-2119
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Olivia K. Smith, Attorney at Law
Cornetet, Meyer, Rush & Stapleton
123 Boggs Lane
Cincinnati, OH 45246
Phone: 513-771-2444
Fax: 877-483-2119
oksmith@cmrs-law.com

Family Law Attorney Olivia K. Smith, LLC represent clients in Cincinnati, Anderson Township, Batavia, Loveland, Mason, Milford and other communities in Hamilton County, Clermont County, Butler County and Warren County.

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