A living will, sometimes called an advance directive, or advance health care directive, is something very different from a trust. Everyone should have a living will, and people with an estate or significant property also need to have a trust. I’ll discuss this in more detail in this blog post, along with how they differ from a will (without “living”) because they are often confused.
The Difference Between a Living Will And a Trust
There is a huge difference between a living will and a trust. A living will is a document anyone should have. It specifies what should happen if you were to become seriously ill or insured, or mentally incapacitated. A trust, on the other hand, is basically a vessel that contains your assets and property and protects them for you during your lifetime and for your heirs after your passing.
The Living Will Is for the Living
We don’t want to think about what terrible things could happen to us. Whether it’s traffic accidents, other accidents, or whether we’re incapacitated either temporarily or permanently due to illness, we may need to have some decisions in place.
What should the doctors do if you’re severely injured or ill? Should they try to save your life no matter what it takes, even if it prolongs your pain and suffering? Or should they give you the kind of care that will make you most comfortable until the inevitable occurs?
That’s what a living will is for. It’s a document where you specify what you want to happen in any such circumstances. Do you want heroic efforts, intubation, any kind of surgery that has even a miniscule chance to prolong your life for even just a few days? Or would you rather take your last breaths in peace, perhaps surrounded by your loved ones, without being tethered to beeping machines?
How To Ensure Your Wishes Are Honored
If you should find yourself in a situation where you cannot fend for yourself because you’re incapacitated or unconscious, you need a living will or an advanced medical directive. And that’s exactly what a living will is. It will help you, your medical team, and your loved ones too because otherwise they’re faced with the problem of not being able to determine what you would have wanted.
You also need to assign a person as your health care proxy or representative and give them a durable power of attorney so they can talk to your medical team on your behalf.
Your living will, specifically, covers what treatments you do or do not wish to be used to keep you alive. Give some thoughts to your value, and decide accordingly. There are many decisions to be made, from cardiopulmonary resuscitation (CPR), mechanical ventilation, tube feeding, and more. This also includes decisions about comfort care, organ and tissue donation, and donating your body to research if you wish.
So be sure to take care of this while you can. See an estate planning attorney for help with this as well as with the trust that we’ll discuss below.
What Should You Do with Your Living Will?
Once you have a living will or an advanced directive, be sure to keep it in a safe place, but make it one that can be found when needed. Also keep a copy with your attorney.
Also give a copy to your doctor and your health care proxy. Talk to your family members about your living will and make sure they understand what your wishes are.
In addition, keep a wallet-sized card in your wallet that states you have a health care directive with your lawyer’s and your health care proxy’s contact information and where the document can be found.
You may also want to review your health care directive periodically and make changes as appropriate.
What Is a Trust
A trust is very different from a living will. There are two kinds of trusts: revocable trusts and irrevocable trusts. As the names indicate, revocable trusts can be updated as needed, while irrevocable trusts cannot be modified without the consent of the beneficiaries. Revocable trusts are also called living trusts. This means that the creator of the trust is still alive. After the person’s death, the living trust turns automatically into an irrevocable trust.
However, irrevocable trusts can also be set up during the owner’s lifetime This often happens when assets need to be protected or removed from the owner‘s access, for example if the owner is incapacitated and needs Medicaid to pay for nursing home care. It also protects the owner from judgments in cases like bankruptcy and lawsuits.
So while living wills ensure that the owner’s wishes are being followed when it comes to medical treatments and heroic measures in the event of incapacitation, a trust is like a container in which the owner’s assets are placed.
The reason they are placed there is two-fold. On the one hand, they can exist to protect them from being seized in various ways, i.e., for taxes, debts, and more. On the other hand, their job is to distribute the assets to the heirs.
Trusts Can Protect Assets Long-Term
In addition, they can protect the heirs’ assets in the long term, and even preserve them for THEIR heirs, for example in case the widow of the deceased gets remarried and then divorced. In California, with its community property laws, half the inheritance might go to the widow’s ex-husband-to-be. However, if the money is in the right type of trust, it can remain there and can later be passed down to her children.
How To Set Up a Trust Properly?
Setting up a trust properly is a complicated process. You should never attempt to do this by yourself, because any mistakes can have serious consequences. Instead, you should seek out an experienced estate planning attorney.
Start by calling or emailing an experienced estate planning attorney for a free consultation and find one you feel comfortable with. Then bring all your financial information to get their help with establishing your trust.
You’ll be glad to know that an estate planning lawyer can also help you set up a living will for yourself and each member of your family. That will keep you protected if anything should happen to you that would leave you either temporarily or permanently incapacitated.
Your Next Step
If you have questions about a living will or how to set up a trust, either a revocable trust or an irrevocable trust, just contact us by phone at ,,,, or by email. We’ll be happy to talk with you and help you with getting those set up for you.