What are Advance Directives and Living Wills?

Overhead view of Estate planning documents, Living Will, Advance Directive forms and striped ink pen.

Most people know that wills and trusts are part of estate planning, and have a general idea of what they are and what they are used for. But there is a lot more confusion around the terms “advance directives,” “advance health care directives,”“health care directives,” and “living wills.” To make matters worse, the terms are sometimes used interchangeably, but they are not exactly the same thing. In this blog post, we’ll try to clarify the concepts and help you understand why it’s so important to have advance directives. 

“Advance directive” is an umbrella term for documents created to guide healthcare decisions for a patient who is no longer able to make or communicate those decisions for him- or herself. There are a number of different types of advance directives. Advance directives should be a part of every adult’s estate plan, since sudden accidents, injuries, and illnesses can happen at any age

What’s the Difference Between an Advance Directive and a Living Will? 

A living will is one type of advance directive; there are other types of advance directives we’ll discuss below. A living will is a document that states what types of medical care you would or would not want used to keep you alive under certain circumstances. For instance, you might be willing to accept different types of treatment if you had a good chance of recovery than if you were dying. A living will also allows you to express your thoughts about when life is no longer worth living, and your wishes regarding things like pain management and organ donation. 

Another common type of advance directive is a durable healthcare power of attorney. This document allows you to name someone to make medical decisions on your behalf if you no longer have the capacity to do so. Depending on where you live, that person might be referred to as your agent, your health care proxy, your patient advocate or some other term.

As you can imagine, these two documents often go hand in hand with each other. In Minnesota, a health care directive is a document that combines a living will with a durable healthcare power of attorney. This single document can be used both to designate an agent to make your health care decisions, and to give your agent information about your wishes, so they can make the best decisions for you. 

There are other documents, such as Physician Orders for Life-Sustaining Treatment (POLST), which are not considered advance directives, but which may be important for some people to have in place along with their advance directives. POLST are intended for individuals who are seriously ill or frail. They are portable medical orders, meaning that they apply to all health care providers. POLST give patients with advanced frailty or serious illness the ability to choose or reject certain treatments if they become unable to speak for themselves. A “Do Not Resuscitate,” or DNR order, is a type of POLST.

A POLST may sound similar to a living will, and both documents cover end-of-life issues. However, a living will is a legal document, while a POLST is a medical order signed by a doctor and will be treated as such by emergency medical personnel. 

What to Include in Your Advance Directives

An ideal living will would include your preferences for end-of-life care, stated as clearly and specifically as possible. The more specific you are able to be about your wishes, the more likely that those wishes will be honored. However, if you are not sure what you want in a certain situation, your living will can also state that you want your agent (under your durable power of attorney for healthcare) to make the decision for you if the situation arises. 

Your advance directive should include the name and contact information of your agent. Your agent should be someone with whom you feel comfortable discussing your health care and end-of-life preferences, and whom you trust to make decisions that align with your wishes. The document must be in writing, state your name, and be signed by you. 

Your signature must be witnessed by either a notary public or by two witnesses who are not named in the document as your agent or alternate agent. If it is not possible for you to sign the document, it should be signed by someone you have authorized to sign on your behalf (so long as you are legally competent to execute the advance directive).

If you have further questions about living wills and other advance directives, we invite you to contact Mundahl Law at 763-575-7930 to schedule a consultation.

Categories: Estate Planning