What's the Difference between Living Wills & Living Trusts?

     A common problem clients have when starting the estate planning process is confusion regarding the purpose of the various documents involved in an estate plan. Legislatures and attorneys augment this confusion by using similar common names for some of the documents. When you have a Will, a Living Trust, and a Living Will, a measure of uncertainty is understandable from clients who do not deal with these documents on a daily basis.

     We have discussed in detail how a Will dictates the decedent's desires regarding property held in their name alone the death, that must pass through the Probate Court before passing to their heirs. Similarly, we have addressed how a Living Trust administers property held in the name of the Living Trust, and deals with many of the same issues, but does so outside of the Probate Process. Today's post addresses the Living Will, what it does, and how it fits into an estate plan., A Living Will deals with what we refer to as the "here and now" . Together with the Patient Advocate Designation, the Living Will helps to address health care issues that arise during a client’s lifetime where, due to incapacity, the client is unable to make medical decisions for themselves.

     When executing a Patient Advocate Designation, clients nominate an individual to make medical decisions on their behalf if they are incapacitated and unable to make those decisions for themselves. A Living Will acts as an instruction manual from the client to their designated patient advocate, stating their wishes to that advocate regarding their healthcare. The choice to have a Living Will is purely voluntary and the Living Will may be as specific or as general about health care wishes as the client prefers. Under Michigan law a Living Will has no legal force. However, if there is a conflict regarding an incapacitated person's care that necessitates Probate Court involvement, written or oral statements, such as a Living Will, are admissible as evidence of the incapacitated persons desires as to their own care.

     The basic Living Will addresses the client’s desires concerning the use of medical devices to artificially prolong their lives. It is our belief that regardless of the client’s other desires regarding health care, it is important the client articulates an opinion regarding their desires for continued care if their lives are being maintained solely by machines. If clients wish to include more expansive directions to their patient advocate, we ask them to provide us with a list of those instructions for inclusion in their Living Will and encourage them to speak with their designated patient advocate so that everyone involved is on the same page regarding care.

     While contemplating our mortality is an uncomfortable topic for almost everyone, some solace can be gained by knowing that those people who we trust to make decisions on our behalf are guided in those decisions by our own instructions.

Matt Ferrara