Living Will Versus a Last Will

by David Montoya
Living wills give medical treatment directives.

Living wills give medical treatment directives.

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Living wills and last wills serve two different functions. A last will is what you think about in regards to testamentary documents. It sets forth how property will be divided. A living will, on the other hand, is a set of directives that must be followed in the event of a medical emergency.

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How a Last Will Works

A last will becomes effective after the testator, or person who wrote the will, dies. It is a legally binding document that directs the probate courts to divide the property of the testator in a certain manner and to particular people called beneficiaries. The courts will try to determine the intent of the testator if any part of the will is ambiguous. The property of the testator will be administered once all the beneficiaries are identified and all the testator's obligations, such as taxes and debts, have been paid in full.

Administration of a Last Will

A last will is administered by an executor. The executor is named by the testator and is responsible for finding all the estate property and for taking care of taxes and outstanding debts. The executor must create a special bank account and keep all accounting records in order. The probate courts ultimately turn possession of the estate property over to the beneficiaries.

How a Living Will Works

A living will gives specific medical directions to follow in the event that the testator is seriously ill, has been in a serious accident, or is otherwise gravely ill and not in a condition to give any directions. These directions will dictate how, or even if, life-sustaining medical treatment will be administered and for how long. A common example that appears often in living wills is the administration of feeding and breathing tubes. A living will may state that the testator does not wish to be kept alive by such artificial means. As such, the living will gives the legal authority to have the tubes removed.

Administration of a Living Will

A living will is controlled by an attorney-in-fact that is created through the power of attorney. This person is specifically mentioned in the living will and acts as the medical agent of the testator. The attorney-in-fact is the person who gives the actual directions to the doctors on what they can and cannot do. No other person has the authority to carry out the living will.