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Planning for Incapacity with a Living Will (Advance Medical Directive)

As we age, it only makes sense to make legal decisions about various aspects of your life. One of these is who would make decisions for you if you were to become incapacitated.

Incapacity can happen even when you are young—from a car accident, a sports accident or if you are the victim of a violent crime to name a few.

No matter your age, if you were to suddenly be in a coma, or otherwise unable to communicate your wishes regarding your medical care, a living will—also known as an Advance Medical Directive—could do that for you.

Not only will a living will protect you in the event you become incapacitated, it also protects your family and loved ones. Information about living wills includes the following:

  • Living wills designate a healthcare agent who will make healthcare decisions for you if you are unable to make those decisions on your own.
  • Most hospitals and doctor’s offices have living will forms, however it is almost always a better idea to have your estate planning attorney prepare a living will for you.
  • If you are over the age of 18, you should have a living will.
  • A living will must be completed and signed while you are fully competent.
  • Living wills allow loved ones to know for sure whether you would have wanted to be placed on a feeding tube or a ventilator, as well as other health care decisions.
  • A living will does not require notarization, however does require two witnesses.
  • If you don’t have a living will, doctors will do everything in their power to keep you alive, regardless of your quality of life.
  • If you don’t have a living will, your closest family member will be asked what to do—if he or she is unaware of your wishes on the subject, there could be guilt over making the wrong decision, or other family members could argue with that person about your treatment.

It has been noted that the majority of Americans spend more time planning their vacations than planning their estates. There is, of course, a good reason for this—planning your estate can be depressing, while planning a vacation is usually fun.

Despite this, having an estate plan is perhaps one of the most important financial decisions you will ever make, and a living will is a crucial part of your estate plan.

What Does “Incapacitated” Mean?

Incapacity has a fairly subjective definition, although in general, the term refers to the loss of mental or physical abilities. This loss of mental or physical ability could be caused by dementia, a mental disability, Alzheimer’s, substance abuse, or an accident which leaves you unable to communicate your wishes.

So, assume you are no longer able to drive yourself here and there, but your mental capacity is just fine—are you considered incapacitated?

To legally determine incapacity, a court proceeding is necessary. A judge will determine whether you have lost the ability to make your financial, healthcare or personal decisions.

This would rarely be the case when talking about a living will, because in that living will you clearly lay out your own definition of incapacity, and designate a healthcare agent who will follow your wishes, which will be stated in your living will. Perhaps you don’t want to be on a feeding tube, but are okay with being placed on a breathing machine.

These wishes will be stated in your living will, and you will have discussed your wishes with your designated health care agent.

If you do not have a living will, and you become incapacitated, your family members will have to file a petition with the court to name a guardian who will make decisions on your behalf—decisions you might not be the least bit happy about if you were not incapacitated.

Having an experienced North Virginia estate planning attorney prepare a living will on your behalf—as well as other necessary estate planning documents—is perhaps one of the kindest, most thoughtful things you can do for your loved ones.