Will versus Living Will – What is the Difference? Do I need Either?
By Helen Rees
Most people know that a Will is a legal document which states who inherits your assets and who has custody of children (under 18) after you die.
Without a Will, Statute and a judge determine who in your family will inherit your estate. The fact that you may have disliked each other is irrelevant. Close friends are never included. Furthermore, a judge will decide who raises your children.
A Will takes effect only after you die. A “Living Will” has effect while you are alive.
A Living Will document authorizes someone to ‘speak for you’ and makes the tragedies of life easier to handle. With a Living Will, you can give someone the right to make decisions for you about medical treatment, administration of drugs and end of life decisions. You can also give someone the right to act on your behalf regarding legal and financial matters relating to your property, bank accounts, investments, etc.
A Living Will is the colloquial name given to two separate legal documents: An Enduring Power of Attorney and a Personal Directive.
Why do I need a “Living Will”?
Should you lose mental capacity during your lifetime and become unable to ‘speak for yourself’, your spouse/partner or next of kin do NOT have an automatic right to ‘speak for you’. Similarly, if you hold title to your home jointly, your co-owner /spouse/partner does NOT have an automatic right to act on your behalf. However, you can empower them to act on your behalf through a Living Will.
The Enduring Power of Attorney allows you to appoint someone to make your decisions for you even if you LOSE MENTAL CAPACITY (i.e. through illness, old age or accident.) This document lets you decide who will act for you regarding your legal and financial matters. The person you appoint (called the Attorney) will for example, be able to deal with your bank accounts, taxes, and any legal matters related to your property, investments, title to land and/or your home, mortgages and any mortgage renewals that you may need.
The Personal Directive is the document that allows you to appoint someone to make personal and medical decisions if you do not have the mental capacity to do so yourself. It enables YOU TO DECIDE who will be the person to make decisions for you. It can include decisions about what kinds of medical treatment you do or do not want, what drugs you want as well as “end of life” decisions. The person you appoint (called your Agent) can also decide where you live if you require long term care.
Without these documents in place, if you lose mental capacity to make these decisions for yourself, your spouse/loved one will have to commence court proceedings to resolve these issues.
Having a Will and Living Will in place makes it easier for your loved ones to understand and execute your wishes on your behalf, particularly during a very stressful time. It can save both you and your loved ones time and money.