FAQ Series: What’s the difference between a will and a living will?

A Will is a document in which you direct the distribution of your property after your death. After you die, your executor will file the will with the probate court, which will then oversee the transfer of your assets to the people you’ve named in your will to receive them. 
A Living Will is a document in which, depending on your state, you state your wishes for your healthcare if you’re not able to make your decisions yourself and appoint someone to make those decisions on your behalf. However, the actual terminology for living wills varies from state to state- there are health care proxies, living wills, advance directives, and health care powers of attorney. The actual function of these documents varies from state to state (an Advance Directive, for example, may be a binding document in which you appoint an agent to make your medical decisions if you’re unable to do so yourself, but may also be a more general statement of your understanding that life is finite.)
New Hampshire
In New Hampshire, health care planning is accomplished through a two-part document called a Durable Power of Attorney for Healthcare. The basic document is a statutory form (you can find it in RSA Chapter 137-J).  (You do not have to do both parts of the document - you can do one or the other - but I advise clients to do both.)
The first part is called an Advance Directive. This document allows you to appoint an agent to make medical decisions for you if you are unable to do so. You can only appoint one person at a time, but it’s a good idea to appoint several alternates. The Advance Directive is also where you note your wishes with regard to the starting, continuation, or discontinuation of life-sustaining treatment. You may also add any additional health care instructions you want your agent to respect, such as treatments or medications you may want or not want, or other guidelines for your treatment.
The second part is called a Living Will and sets guidelines for determining when it would be appropriate to withdraw or refuse life-sustaining treatment. It also states your wishes for palliative care (for example, hydration and nutrition to be kept comfortable).
In Massachusetts, the “Living Will” is also accomplished with two documents: a Health Care Proxy and an Advance Directive.
A Massachusetts Health Care Proxy allows you to appoint an agent to make medical decisions for you if you are unable to do so. You may also use this document to state any specific instructions you have for your medical treatment.
The Advance Directive is a statement of your feelings with regard to life-sustaining treatment, and can be modified to suit your wishes. This document is not necessary and is not binding (the Health Care Proxy accomplished the legal goal of granting someone the authority to make your medical decisions), but can be helpful to your family as a written expression of your wishes, should they have some disagreement over your medical decisions.
Why do you need any of these documents?
The textbook example of the need for a Health Care Proxy or Durable Power of Attorney for Healthcare is the sad case of Terry Schiavo, the Florida woman who suffered serious brain damage after a heart attack in 1990 and who then became the object of years of litigation between her husband (who wanted to remove her from life support) and her parents (who did not). The case involved multiple lawsuits, guardianship hearings, a hasty law passed by the state legislature that the state Supreme Court declared unconstitutional, and national controversy. Schiavo’s parents and husband disagreed about what she would have wanted, and there was no living will to state her wishes after she was no longer able to speak. Schiavo’s feeding tube was eventually removed, and she died in 2005.
It’s important to have a document signed by you, drafted with your specific wishes and family situation in mind, that allows your family or the person you’ve appointed as your agent not only to make your medical decisions, but to know what those decisions are. These documents not only ensure that you receive the treatment you’d want; they can also save years of family fights by stating your wishes in black and white, with your signature right there on the page. 
I recommend these documents to all clients, from 18-year-olds leaving for college or the workplace to young parents to retired folks. Unfortunately, we can’t predict the future. No one knows when they might need someone to make these difficult decisions on their behalf. But if you’ve ever thought, I’d never want to be kept alive without any hope of recovery or If there’s any hope of my recovery I want every last test and procedure or anything in between, ensure that your wishes will be followed and get a Health Care Proxy or Power of Attorney.

Leave a Comment