A Living Will is a document which allows an individual who is terminally ill and is unable to make a responsible decision regarding medical care to request that life supporting actions be withdrawn. Although sometimes controversial, the right to make a living will really amounts to nothing more than the basic legal right that each person has to decide what may be done to his or her body. This also includes the right to refuse medical care or treatment even though the care or treatment may be necessary to continue life.

The initial form of Living Will varies on a state-by-state basis. In some states, a living will only takes effect when two physicians confirm that a patient is terminally ill and is unable to make any decisions regarding care. When these conditions are met, the patient has the right to direct all life sustaining procedures to be withdrawn. With this, the living will represents a clear communication of the patient’s desires regarding the use of advanced medical technology to sustain life in such circumstances.

Durable Healthcare Power of Attorney

A power of attorney is a written document by which one person allows another as his or her agent, and it gives the agent authority to act in place for the stated purpose. A Durable Healthcare Power of Attorney is a document through which an agent is appointed to make healthcare decisions for the principal in circumstances in which the principal is otherwise unable to make such decisions. If the principal has a terminal condition or illness, a Durable Healthcare Power of Attorney may serve as a supplement to his or her Living Will, and it may allow the agent to reinforce the personal decisions of the principal reflected in the Living Will. However, a Durable Healthcare Power of Attorney also authorizes the agent to make healthcare decisions for the principal in circumstances in which the principal is temporarily or permanently incapacitated, but is not terminal. A Durable Healthcare Power of Attorney may be applicable in circumstances in which a Living Will is not effective.

The person appointed in a Durable Healthcare Power of Attorney may be given great discretion to make decisions for the principal using his or her best judgment as to the desires of the principal in any particular set of circumstances. However, if one of the options available to the person is intended to be the right to decline medical treatment on behalf of the principal in certain circumstances, a better alternative to the use of a Durable Healthcare Power of Attorney would be to use the Durable Healthcare Power of Attorney as a form of “Medical Directive.” In such a document, the principal may state specific wishes and directions regarding the use of various types of medical treatment in several different situations, and request that the agent follow those wishes and directions if the circumstances described in one of those situations actually arise. The agent could then be given authority to make independent judgment if circumstances fall outside those described in the fact situations.

Durable Power of Attorney

Another Living Will is called “Durable Power of Attorney”; the principal authorizes the agent to act on behalf of the person dealing with financial agreements or affairs. The keys with such a document are that it is prepared and signed at a time when the principal has the necessary mental capacity to understand its nature and significance and that it contains the necessary language to allow it to continue to be valid and effective during any period of time that the principal is incapacitated.

A Durable Power of Attorney may be made effective immediately, or if the principal is concerned about the possibility of  losing control of his or her financial affairs at a time when he or she is not incapacitated.  Also, the powers given to the agent to deal with financial matters may be narrow, such as the authority to act on behalf of the person at a real estate closing, or broad, including the authority to handle all of the financial affairs of the principal. Every scenario varies.

Revocable Living Trust

A Revocable Living Trust is a trust entity created by a competent person (the “grantor”), during his or her lifetime, which may be amended or revoked by the grantor at any time.  Typically, the grantor of such a trust would also be its initial trustee, with provisions in the trust agreement designating a successor or alternate trustee in the event that the grantor becomes incapacitated, or is otherwise unable to act.  Ownership of all or some portion of, the assets of the grantor is transferred to the trust, subject to instructions contained in the trust agreement regarding management and disposition of such property, both during the life of the grantor and following his or her death. In most cases, the grantor is the primary beneficiary of the trust during his or her lifetime, and the trust agreement contains instructions for distribution of the trust assets to other beneficiaries only following the death of the grantor.

A Revocable Living Trust is a useful document for allowing the grantor to retain control of his or her assets while competent, yet provide for management of such assets by the successor or alternate trustee in the event of the grantor’s incapacity. It also may have some benefit in protecting assets of the grantor from creditors, and upon the death of the grantor, it serves as a will substitute, allowing the trust assets to be transferred to the grantor’s beneficiaries in a simple and private fashion, outside of the probate process.

In some circumstances, it may be appropriate to use both a Revocable Living Trust and a Durable Power of Attorney. A trust is created, but the grantor either transfers no assets or only a nominal amount of assets to the trust. Provision is then made in the trust agreement for the transfer of all of the assets of the grantor to the trust in the event of the grantor’s disability. The transfer upon disability is accomplished through a Durable Power of Attorney executed at the time the trust is created.

In this case if you were interested in creating your own Living Will, you can simply go to www.createawill.com and find your own specific state Do it Yourself Living Will & Testament Forms and Kit.

Tags: durable healthcare power of attorney, durable power of attorney, financial agreements & assets, grantor, Living Will, primary beneficiary, Revocable Living Trust, sustain life, terminally ill, trust agreement

This entry was posted on Friday, May 21st, 2010 at 3:01 pm and is filed under Last Will and Testament, Living Will, Protecting your Family, Tools and Resources, Will Forms. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.