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What is a Living Will?

Putting Your Wishes in Writing

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Planning for what happens to you if you suffer from a terminal illness or are critically injured should be made a part of your estate plan, otherwise these difficult decisions will be left to your family and doctors. The legal document necessary to put your wishes in writing is called a Living Will.

What is a Living Will?

A Living Will is a legal document that allows you to write down your wishes with regard to what medical procedures you want, or do not want, to receive if you are in a irreversible coma, have been diagnosed with a terminal illness, or have suffered from a severe injury and are not expected to fully recover. A Living Will should also allow you to designate an agent, advocate, or surrogate to speak on your behalf if you are unable to do so for yourself.

State Laws Govern Living Wills

As with Advance Medical Directives and financial Powers of Attorney, all 50 states have their own specific laws that govern Living Wills. These laws will generally provide for the following:

  1. Who can make a Living Will (usually a mentally competent person who is over the age of 18);
  2. What minimal provisions a Living Will must contain to be legally enforceable;
  3. Who can and cannot be named as an agent, advocate, or surrogate;
  4. What legal formalities must be observed when a Living Will is signed; and
  5. Who can and cannot witness the signing of a Living Will (many states prohibit a health care provider from acting as a witness).

Because of these strict state law requirements, it is important to have your estate planning attorney assist you with preparing and signing your Living Will.

Complying With HIPAA Rules

Aside from strict state law requirements, your Advance Medical Directive or Living Will must also contain provisions to comply with the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA. Some states have also enacted laws that are similar to HIPAA, such as California.

BEWARE - While HIPAA was enacted in 1996, it took Congress until 2001 in which to promulgate the rules that govern HIPAA compliance. As such, if you already have an Advance Medical Directive and a Living Will but your documents were created before 2001, then your Advance Medical Directive and Living Will are not HIPAA compliant and must be redone in order for these documents to work as you expect them to work.

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