Getting ready to enroll in Medicare? AARP’s Medicare Made Easy has the resources you need to help you make the right choices.

Question

What is the difference between a living will and a will?

 

Answer

A "living will" is a document that formalizes your wishes for medical decision making at the end of your life. If this is what you are looking for, there are many excellent resources available online, and AARP offers a state-by-state guide that will bring you to a form that may be used in your state. Here is the link for that page:  https://www.aarp.org/caregiving/financial-legal/free-printable-advance-directives/

 

A "will" is a document that formalizes your wishes for how your property will be distributed after you die and names a person (or people) to be the executor/personal representative who can manage your property until it is distributed.

 

Question

Is it possible to get a will form from AARP that we can just fill out ourselves and have notarized, or do I need a lawyer for a will?

 

Answer

There are form wills out there, but they generally don't cover the full picture (including the practical side of how everything works after you've passed). In general, form wills are not often suggested because there is a lot that goes into that type of planning. Even if we think our assets aren't much or if we don't own much property, there is always some work that needs to be done to close up a person's affairs after they pass away. If we can dictate that through thoughtful planning in a way that can avoid probate, reduce possible conflict among surviving family members, and streamline the whole process, then it makes that work so much easier.

 

Consider talking to a professional and perhaps seeking out what services are available in your state (there are many programs that do pro bono or low bono wills and estate planning). It can be a small up-front investment, but the benefit to you and your loved ones can be significant.

 

Wills are not as simple as knowing who you want to inherit what assets. All the bases may not be covered by simply filling out a form. For example, an attorney can work with you on the best ways to leave assets to charities to maximize your gift to them, whether there are deeds that can pass your home directly to someone without need for probate, how to avoid your assets going to creditors instead of your loved ones, ways you can title your accounts now so that they go right to your loved ones when you pass, and countless other ways. It is possible that probate can be avoided completely and you can squash any possible conflicts among your heirs by way of a well-crafted estate plan.

 

Question

What is the difference between a living will and a POLST? I have a POLST from one state and recently moved to another. Do I need to make changes or update it because of the move?

 

Answer

A POLST is a Physician's Order for Life-Sustaining Treatment. It is a document for people with advanced illnesses that specifies the type of care they would like in an emergency situation. Because it is a "Physician's Order," a physician or medical professional is the one who signs this document along with the patient making it. These are not the same as advance directives, which are legal documents. Think of POLSTs like medical orders. 

 

Every state has its own rules and practices. Many states have documents that are conceptually similar to the POLST, but may go by a different name (MOST, MOLST, POST, SMOST, SAPO, etc.). It may be worth your while to do a refresh of all your documents in your new state (both your advance directives and your medical orders). Consult with your medical providers on this point. In the meantime, here are some resources that may be helpful:

  

Here is an AARP article that provides more information about POLSTs.

 

Here is the POLST.org webpage, which includes state-by-state information.

 

Question

Can the government (state or federal) or a place where the dying might be being cared for outside the home—hospice facility, hospital, assisted living, nursing home, specialized care facility—somehow intervene to force tube feeding on a dying person despite having an advance directive? If I specify in my Health Care Directive that I do not want tube feeding to keep me alive, and my appointed health care directive representative also knows of my wishes, can a health care provider or a state force it upon me because of "humanitarian" gestures of not wanting me to starve to death?

 

Who has the final say in carrying out my wishes at times like these—the state or the individual?

 

Answer

There are serious clinical, ethical, and legal implications in this kind of example. The guidelines of an advance directive are what should determine a patient's end-of-life care, and this is why they are such an important part of our conversations about living and dying according to our own wishes.

 

All fifty states and the District of Columbia have laws that legalize the use of advance directives like living wills, health care proxies/surrogates, and durable powers of attorney. In 1991, the federal government passed the Patient Self-Determination Act that validated all of the states' laws. These documents allow a patient to receive care that is consistent with their desires.

 

Tube feeding is very specifically addressed in many advance directives. Here is a link to the Oregon Advance Directive. If you look, you'll see that this advance directive doesn't just address tube feeding but it also talks about it under a variety of scenarios (what if the patient is close to death, has an advanced illness, is permanently unconscious, etc.) and gives options like "I do want tube feeding," "I do not want tube feeding," and "I want as the physician recommends." 

 

It may not be pleasant to think about, but half of all patients lose decision-making capacity at the end of life. Of this half, over two-thirds face choices on specific end-of-life treatment options. A living will is what speaks for the patient when they cannot communicate about those end-of-life treatment options themselves. Despite this, while 92% of people have heard of living wills, only 36% have actually completed them.

 

In short, living wills and advance directives are the tools that allow us to truly be the "captain of our own ship" right up until the time of death, up to and including decisions such as tube feeding. 

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