Living Will vs. Last Will: What’s the Difference?

The estate planning documents—vitally important but often ignored—can be a bewildering subject to tackle. As a caregiver, I saw firsthand how important it was that plans had been established before my grandparents were both diagnosed with dementia; and the more time I spent caring for them, the more I came to understand how bad it would have been if they had not taken the steps to legally ensure their care and protection.

People often postpone getting their estate planning documents prepared, but that delay carries with it a huge risk. Imagine this: your loved one is in the hospital and the doctor approaches you and says, “If his breathing stops, do you want us to intubate (i.e., insert a tube into the body, in this case, specifically the trachea for ventilation)?” Do you know what your loved one would want you to do for them in that situation?  

Because estate planning is such an important and widely misunderstood area of caregiving, this article is the first in a series of blogposts that will examine individual legal documents to clarify what they are and why you need them. I’m beginning with a topic that came up during a Q&A session at a workshop I recently hosted:

How is a “Living Will” Different From a “Last Will & Testament”?

Both phrases contain the word “will,” so what’s up? Are they different—and if so, how? In a word, yes, they are different—very different!

First, it should be noted that any good estate plan will start with the advance directives–legal documents you prepare ahead of time (in other words, in advance—before you need them). An advance directive will either (1) give someone specific directions or (2) designate another person to make decisions for you if you aren’t able to make decisions yourself. The living will is only one type of advance directive (the other type is a durable power of attorney which we’ll discuss in separate post).

It is in the living will that you can specifically state your wishes regarding medical treatment for yourself, i.e., life-sustaining or life-saving procedures such as intubation for a ventilator or feeding tube, blood transfusions, etc. It is a crucial document because it tells doctors what you do and what you do not want done as part of your medical care while you are still alive. On an emotional level, this document is a great help to family members; when you have already stated what you want done, it means your family members don’t have to agonize over the decision wondering what you’d want them to do.

A last will and testament, on the other hand, is a document that will only take effect after your death. Frequently referred to simply as a “will,” this document specifies how you want your money, property and possessions distributed to your remaining family members or friends (your heirs) after you have passed away.

We can distinguish the two documents like this:

• The living will is only in effect while you are still living
• The last will and testament does not go into effect until after you have died

And consider this: with no living will in place, if there’s ever a question of whether or not to intubate, the decision will fall to the doctor on duty, and they likely will intubate if they don’t know what the patient’s true preference is. Likewise, if there is no last will & testament in place, the ultimate distribution of a person’s property will be up to a judge, and a hefty amount of the “estate” cash will be eaten up by court costs. In other words, you lose if there’s no living will, and your heirs lose if there’s no last will and testament.

I encourage you to schedule an appointment with an attorney today to see what may be missing or incomplete regarding your estate plan; a first consultation may be free of charge—check with the office staff when you call to schedule. Don’t procrastinate! You’re so much stronger when you have these things in place!