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What Is A "Living Will"?

When you hear the term "Living Will," it means the same thing as "advance care directive," "power of attorney for health care" or - as we know them in Minnesota - "health care directives."

A "Living Will" is not a Will at all.  That is, it isn't a Will that people use to leave certain things to their family or charities when they die.  That's probably why the legislature changed the official name from "Living Will" even though people still call it that.

The Living Will or Health Care Directive (HCD) is namely a document that allows the maker to express his or her wishes for end-of-life medical care when the maker is no longer able to communicate his or her decisions.

Under Minnesota law, the HCD can also direct certain things after the death of the maker including donation of organs, cremation or funeral preferences.

A Living Will or HCD is an important estate planning tool because it deals with your preferences for medical care when you are incapacitated.  Statistics show you are six times more likely to be disabled than to pass away in any given year.

The maker's Living Will specifies what medical procedures he or she wants or doesn't want.  Most importantly, the document designates another person or persons when the maker is unable to make their own decisions.  This designated person is called the "health care agent."

Without this document, the family members and health care professionals are left guessing what treatment a seriously ill person would want.

Often the person who visits their attorney for a Trust or Will can have a Living Will prepared at the same time.

Living Wills can be tricky because there are certain technical requirements in order to make it valid.  What's more, if you travel elsewhere, different states can have different requirements.

It's usually a good idea to have the Living Will or HCD prepared by an experienced estate planning attorney.  The experience of the attorney is often helpful to foresee some of the possible contingencies that many people may not always anticipate.

It is vital that the maker discuss with their health care agent the kind of medical treatment or medication that he or she prefers or does not want.  This can be a delicate decision especially when it comes to some procedures such as CPR, intubation and anti-psychotic medications.

The number one "take away" from this discussion is that you should make these important decisions while you are in good physical and mental health.

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