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Gerard V. Muriello, Attorney At Law

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Do You Know The Difference Between Wills, Living Wills, And Healthcare Power Of Attorney?


No one wants to talk about wills, living wills, death or dying in general; it's a painful, uncomfortable subject. Despite repeated admonitions over the last 50 years, only about one third of Americans have made arrangements for their sudden death or impairment. People with chronic health conditions were only slightly more likely to have made end of life preparations. These arrangements have typically fallen into three categories: last will and testaments, living wills and healthcare power of attorney. It's important to differentiate between these three measures, since while they all address the same topic, they have vastly different applications.

Wills, Living Wills, Power of Attorney

Durable Power of Attorney for Healthcare

This is a person who you designate to make all medical decisions on your behalf if you should be unable to make them or communicate your wishes for yourself. Since this person may one day have to decide whether or not life support measures such as a "Do Not Resuscitate (DNR)" order or how your religious convictions will affect your treatment, this is not a step to take lightly.

Living Will

Put simply, a living will dictates what your wishes are should you become terminally ill and will die shortly without life support but lack the ability to communicate; if you're in a vegetative state, for instance. It reflects your wishes in terms of DNR directives, feeding and hydration, and in some cases use of pain medication. Living wills are also referred to as advanced directives, or a declaration are usually the first step in end of life care planning. A living will can be cancelled or revoked at any time, and is as simple as indicating your wish to cancel in writing. Creating a new living will that expresses your current wishes also has the effect of cancelling an existing living will. A revocation of a living will is effective when you or a witness communicate the revocation to a healthcare provider or attending physician.

Last Will and Testament

A last will and testament defines what your wishes are regarding your assets, property and minor children in the event of your demise. You name your heirs, a guardian for any minor children, and someone to collect and distribute your assets, commonly known as an executor. You must be of legal age, and "of sound mind," or mentally competent, meaning you understand that you are making a will. Eccentricities or substance abuse issues aren't usually considered reasons to void a will providing you are considered "having testamentary capacity" at the time of the signing. Understand that a will is only enforceable if it complies with the probate laws of your state. You can revoke a last will and testament at any time, or create a new will that nullifies a previous one also at any time.

The most important step in end of life care planning is open communication with the people you love. Choose those who are closest to you, whether by blood, marriage, or otherwise; people you trust implicitly to carry out your wishes and to make these arrangements as early as possible.

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