By Phillip B. Rarick, Miami Trust Attorney
A Living Will is not a will and it is not a living trust. It is simply detailed, legally binding instructions to your physician that you do not want to be maintained in a persistent vegetative state if there is zero possibility of recovery.
The term “living will” is confusing because it is not a will. A better name is Declaration Regarding Life Prolong Procedures. Such a Declaration is important to most persons because, at the end of life, they do not want to maintained in a vegetative state if there is absolutely no possibility of recovery.
A living will is not a living trust. Although sounding similar, these critical legal instruments are completely different. A living trust is a fundamental estate planning legal tool. It provides a plan to care for you in the event of mental incapacity, and it can be a complete substitute for a will by detailing your instructions upon death for giving your hard earned property to whom you want and when you want.
A good living will is a crystal clear statement and instructions to your physician that life prolonging procedures are to be discontinued if the person is in a terminal condition, or end state condition, or persistent vegetative state, and if the attending or treating physician and another consulting physician have determined that there is no reasonable medical probability of recovery from such condition.
Note: No one person can make the decision to discontinue life prolonging procedures. Florida law requires at least two physicians and most Declarations require the concurrence of your health care surrogate. You may appoint more than one health surrogate.
A good Declaration (or Living Will) has a strong statement instructing that everything is to be done to minimize pain. The Declaration should contain a statement that administration of pain-relieving drugs, and surgical and medical procedures, as well as unconventional pain-relief therapies are to be used. This means that your health care surrogate is not constrained by a bureaucratic decision of the Food and Drug Administration when it comes to administering pain relief therapies. Rather, you are placing your trust in the judgment of your spouse, family member or friend whom you have appointed to be your health care surrogate.
Conclusion
Although not a will or a living trust, a “living will” is a Declaration Regarding Life Prolonging Procedures. It is a critical legal instrument that should clearly reflect your wishes in the event you are in a persistent vegetative state and there is not possibility of recovery. Some persons are concerned that even with such a signed Declaration the physician may not respect your wishes. This is why it is important to have the Declaration drafted by an experienced Miami estate planning attorney. Properly drafted and executed, the physician has no choice but to follow your wishes. For more information, contact Phil Rarick, Miami trust attorney, at (305) 556-5209 or info@raricklaw.com.
Special Note
The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami trust attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.