50+ Living Will Templates – Living Trust Vs. Will

In the internet age, we have access to information regarding medical conditions and advancements in developing cures for previously incurable conditions. The same information can be used to make medical decisions on whether a patient is likely to live or die. Some people want to be in control of medical decisions made regarding their life even when they are incapacitated. The living will helps such people leave instructions with trusted people regarding the medical decisions to be made should they be incapacitated.

This article discusses a living will, the reasons for making one, and how it works. We also compare a living will to a power of attorney for healthcare and living trust. Finally, we discuss how to fill a living will and answer the most frequently asked questions.

You may choose to make a living will from scratch, consult a lawyer, or download an online template. Whichever form you choose should comply with your state laws. Locally, you may find living wills at local senior centers, hospitals, doctor’s offices, your state’s medical association, or the National Hospice and Palliative Care Association.

You may also use one of our downloadable online templates, which you can adjust to your liking. A template makes it easier to create your living will as it guides you on the information you should provide. It is also easier to adjust if you change your mind about your decisions.

What is a Living Will?

A living will is a legal declaration containing instructions on the medical decisions its maker needs to make should they be incapacitated.

The maker of a living will (declarant) has to be of legal age (over 18 years old). They leave specific instructions to a person of their choice, often called a healthcare agent or healthcare proxy. A living will is typically made after the declarant is diagnosed with a terminal or incurable condition.

Reasons for Creating a Living Will

It is crucial to remain in control of your life, especially in situations where your family and caregivers may find it difficult to make tough decisions concerning your life.

Some of the reasons for creating a living will are:

• A living lets the declarant decide on someone to make decisions if they become incapacitated, especially if they notice that their health is failing.
• A living will reduces the possibility of struggles in your family and removes the burden of making decisions from family members who may not know what to decide, in addition to the burden of potentially losing a family member.
• You can also make a living will when you’re likely to be hospitalized or undergoing surgery. While not all surgeries are life-threatening, anything could happen while you’re in surgery. A living will let you dictate what you would like to happen should you slip into comatose or other incapacitation.
• A living will puts the declarant in control of their life, especially when diagnosed with a terminal condition. Some illnesses end in painful and indignifying deaths. Some declarants make living wills to state how long they want to be kept on life support and the type of end-of-life treatment they would like.

Because living wills are legal documents, state laws often guide them. Some states have forms where declarants can state how they wish to be handled in case of medical emergencies. The forms have blanks where the declarant fills out all the details as precisely as they want. A valid living will has to fulfil all state requirements. Check on your state laws to ensure your will is compliant.

A living will often states when the will takes effect. Usually, doctors and caregivers rely on instruction from the declarant until they are incapacitated. However, living will sometimes take effect as soon as they are signed.

You should follow the steps below when making a living will:

Decide treatment options

You can only decide the treatment options you want after considering different medical conditions. Visit your medical provider to get all the information you might need when deciding. You should consider conditions like dementia, comatose, and Alzheimer to decide whether you want to be kept on life support or whether you should be renewed or not. Discuss your options with your family so that they know your decision.

Choose the end-of-life decisions

End-of-life decisions are potentially life-shortening decisions that one makes towards the end of their life. Beyond deciding on your treatment options, you may have special requests like wanting a particular song played before their death or meeting with a priest for prayers.

Select an agent

When preparing your living will, you may select a healthcare agent to fulfil your wishes. Consider the person’s proximity, personality (are they assertive?), and whether the person is willing. Your agent cannot be a doctor or medical professional likely to attend to you in the hospital. However, the declarant may choose to forego this decision.

Sign the form

Once the declarant is satisfied with their will, they must sign it in compliance with their state’s laws. The will is to be signed in the presence of two witnesses and a notary public. However, the rules for signing vary from state to state. In Alabama, for example, two witnesses will need to be signed, while in Hawaii, two witnesses and a notary public.

Power of Attorney for Healthcare Vs. Living Will

A power of attorney for healthcare is a declaration empowering another to make medical decisions on their behalf. It covers all medical care decisions beyond death. A living will is a legal declaration in which a principal communicates what they would want to happen to them if incapacitated. The will only applies where the principal is incapacitated, unlike a power of attorney for healthcare that applies to other areas of medical care.

A living trust stipulates a person’s wishes regarding the medical decisions that should be made if incapacitated. A trust is an arrangement between two people where a grantor gives a trustee the authority to control and manage their assets for the benefit of a beneficiary during life and after death.

Below are some of the differences between a living trust and a will:

Beneficiaries’ names for property

While both the will and the trust name the beneficiary, in a will, the testator bequeaths the beneficiary the property, and in a trust, the grantor names the beneficiary and transfers the property to the trustee.

Leaving property to children

Minors cannot legally own property, and any property is managed on their behalf by an adult. In a trust, the property is managed by the trustee until the beneficiary reaches the age stated in the trust. In a will, the property shall be managed by an adult chosen by the testator, be held in a testamentary trust, or by a custodian.

Avoid Probate

Property bequeathed to beneficiaries in a will is distributed after the testator’s death through probate. Probate requires the court’s involvement in verifying the document, properties, and beneficiaries. Often, the process involves the payment of court fees. However, trusts do not need the court’s involvement; the process is shorter, and no fees are incurred.

Privacy after death

A living trust is kept private even after the grantor’s death, while wills must be filed in court after the testator’s death. In contrast, the probate process is public and tends to expose the testator’s affairs; hence the beneficiaries have no privacy.

Transfer of property to trust

The property in the trust must be vested in the trustee for the trust to be valid. Vesting requires the grantor to transfer ownership of the property to the trust; it may be done. A will does not require a change of ownership as long as the property has been bequeathed to the beneficiaries.

Protection from the court

Both trusts and wills can be challenged in court; however, the process is often challenging. Living trusts are more difficult to challenge because the grantor usually participates in making changes from time to time and continuously proving they were competent when making the trust.

Avoiding conservatorship

A will only bequeath property and provides instructions on its distribution. If you are incapacitated, your family must undergo a rigorous process to get a conservatorship. In a trust, the grantor already ceded authority to a trusted family member who can decide on their behalf if incapacitated.

Guardians for children

A guardian is a person that takes parental legal responsibility over a minor. The testator in a will can assign guardianship over their children, while there is no provision for guardianship in trust since the trust only deals with the deceased’s property.    

Naming an executor

In wills, the testator can name an executor who will oversee the eventual disposal of property. In trusts, however, the trustee can only manage the property vested in them through the trust. Therefore, it is recommended to appoint an executor even when you have existing trust.

Instruction for taxes and debts

Because a will deals with property disposal, the testator can leave instructions on how their taxes and debts can be paid from their assets. However, the same cannot be done in trusts because the assets in the trust cease to belong to the grantor and become the trust’s property.

Ease of revising the documents

Wills and revocable trusts are documents that can be revised as long as the testator is alive. Will remain valid as long as the testator can make the will, and any changes or new will automatically revoke any previous will. The same principle applies to the revocable trust, that once a trust is made, it can be amended as long as its maker is alive.

In contrast, an irrevocable trust cannot be revised once it has been finalized. Trusts are also more complex than wills because they require the transfer of property from the grantor to the trust; as such, they are more complex than wills.

Following are things that living trusts and wills cannot do:

Leave final wishes

It is advisable not to leave instructions on your final wishes because the will may not be found immediately after the testator’s death; this may lead to the family doing things differently than the deceased envisioned. 

Reduce estate taxes

Living wills and trusts cannot be used to reduce estate taxes because estates rarely incur federal taxes in the first place. However, the assets passed to the beneficiaries are usually tax-free because they can be passed as gifts.

Leave money to pets

Pets cannot legally own property; as such, leaving the property in their names using a will or living trust is impossible. Any property disposed of in this way automatically goes to the estate. However, the testator may assign a custodian to take care of the pet.

Leave passwords for online accounts

Because of the widespread use of technology, it is recommended to leave the passwords for online accounts to make it easier for the executor to dispose of the estate. In addition, the will become public documents; leaving passwords may expose the family and the estate to fraud.

Healthcare Directive Terminology

Healthcare directives are often given in one document with many names, varying by state.

Below is a list of the names used and alternative names:

• Living will. A living will go by many names, including healthcare declaration, document directing healthcare, directive to physicians, a declaration to physicians, healthcare directive, and medical directive.
• A durable power of attorney for healthcare. It is also called a medical power of attorney, designation of healthcare surrogate, patient advocate designation, healthcare proxy or proxy directive, and appointment of healthcare representative.
• Advanced healthcare directive. The advanced healthcare directive is also called an advanced medical directive or healthcare directive.
• Healthcare agent. A healthcare agent is also an attorney-in-fact for health care, patient advocate, health care proxy, surrogate, or health care representative.

The principal or an advocate can prepare a living will depends on an individual’s preference. The requirements for filling it out depend on the state. The living will be obtained from the state website, online templates, or online software.

The information below should be included in your living will:

Date

The living will be filled out at once; however, we cannot control how it is done. Because doctors require your most recent declaration, the date indicated on the living will be the day it is completed.

Declarant name, mailing address, and SSN

You must identify yourself as best as possible because the physician will make a vital life-ending decision. Fill out the form with your full name, mailing address, and social security number.

Unacceptable quality of life

The stipulations in this section allow the declarant to specify what they would find an unacceptable quality of life. But, again, there are options as to what the declarant considers unacceptable; if they are in a vegetative state or chronic coma when they cannot communicate their needs, when they cannot recognize their families or close friends, or any other condition they consider unacceptable.

Nourishment and hydration

In most cases, after the declarant has defined what they consider the unacceptable quality of life, they choose whether they want to receive nutrition and hydration with medical assistance or not.

Note: A living will is made to help the declarant during their lifetime; its authority ends when the declarant dies. Its authority may only be extended where the declarant left instructions regarding organ donation, compared to a last will and testament that takes effect on the testator’s death.

There are different types of care that the declarant needs to select, including:

Life-prolonging medical care

Life-prolonging medical care is provided when a person’s organs stop functioning correctly and need artificial support to continue living. It may include using a ventilator, a dialysis machine, or an intravenous tube.

Food and water

The declarant may decide whether they want food and water to be withdrawn if they cannot receive it by mouth. If they decide so, the declarant will have shortened their life.

Palliative care

Palliative care is medical care aimed at improving the quality of life of a person diagnosed with a terminal illness. It involves a team of professionals assessing the person’s state and providing medical, emotional, and social support. It may include getting pain relieving medication or being allowed to die at home.

Cardiopulmonary resuscitation

Cardiopulmonary resuscitation (CPR) is when a medical professional administers treatment to restart the heart after it has stopped. The declarant may choose not to be resuscitated.

Ventilation

Ventilation is done by a machine when one cannot breathe independently due to organ failure. The declarant may state the maximum period they would like to be kept on a ventilator.

Feeding tube

The feeding tube is used when one cannot breathe independently. The declarant should decide how long they want to be fed via the tube or if they want to be fed via a tube.

Dialysis

Dialysis involves removing waste from the body, which is the kidney’s function if the kidneys fail. But, first, the declarant should decide how long they would want dialysis and, if so, for how long.

Other

You may have other treatments you do not want to be administered; state them in this section.

End-of-life wishes

End-of-life wishes include wanting to die at home or wanting particular care, or donating your organs. Specify your wishes and whom you would want to carry them out.

Power of attorney’s details

You should select the person to be your agent and be sure they can make medical decisions on your behalf. Identify yourself as the person vesting authority in the agent and state the full name and address of the agent.

Consent for agent’s actions

The declarant should explicitly give consent for their agent to admit them to a psychiatric facility should that be needed and state that the consent is durable. Consent is necessary because most hospitals will need it to admit the declarant should they be incapacitated and unable to make the decision.

Signatures

You should state the date the directive was made and append your signature to the indicated space. The date should be correct because most doctors use your most recent directive. The signature may be made in the presence of two witnesses, a notary public, or a combination of the above, depending on the state’s laws.

Verification

The verification process requires that the witness(es) read the acknowledgment and sign and provide their names, phone numbers, and addresses. By signing, the witnesses acknowledge the truth of the statement.

Notary acknowledgment

Notary acknowledgment is not legally mandatory in all states. Still, it is recommended because where witnesses may be difficult to locate, it is easier to find the notary public that notarizes your will. The notary public will direct the process.

Note: What to do with your signed living will? Once you have signed your will, you need to make copies to distribute to the relevant people, including; your healthcare agent, doctor, close family members, and the local hospital. The people that receive these copies should be those in a position to enforce it when the time comes. Keep the original copy of the living will in a safe place.