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Kevin-Barry Henry

How to Make Your Living Will (And Why You Need One).

By: Kevin-Barry Henry

Your will specifies your wishes when you die, whereas a living will details your wishes while you are still alive (but unable to voice those intentions)

When it comes to Estate Planning, your will is a non-negotiable must. I have covered the importance of your will for you, but especially for your loved ones and beneficiaries in many articles. Just get one.

But your will is only the first step. What would happen if you suffered a health event and for a period of time were incapacitated? If there were a rapid shift in mobility for you or a loved one, what might be different?

That is where your living will comes in.

What’s the difference between a will and living will?

Hint: It’s in the name.

A standard will specifies your wishes for when you die, whereas a living will details your wishes while you are still alive (but unable to voice those intentions). Another significant distinction is that, while your normal will will almost certainly be required at some point, your living will may never be required.

A living will may not be as well-known as a traditional will but it is just as important. Almost half of Canadians have a will, but only about 20% have a living will. In many respects, making a living will is more beneficial than making a will, because your living will benefits you and your family while you are still alive, whereas your will benefits your heirs.

Let’s take a closer look.

Why you should have a Living Will

Unfortunately, there are many conditions or health issues that can render you unable to make your own decisions about your health care and treatment, including:

  • A stroke
  • A Brain tumor
  • Degenerative brain diseases
  • A coma
  • A head injury
  • Severe depression

Many of these scenarios could occur at any stage of life, which is why creating a living will is critical.

A living will allows you to effectively delegate responsibility for making health care and treatment decisions to someone you trust if you are ever unable to do so for yourself. It also allows you to designate the type of treatment and health care you desire (or don’t want) in the future.

If you do not create a living will and become incapacitated, a temporary replacement decision maker may be appointed to make decisions for you.  That terrifying sentence should be reason enough for you to get moving on your living will.

What should you include in your Living Will?

When considering how to create a living will, you should begin by deciding who will make personal and health care decisions on your behalf. Depending on where you live, this individual may be referred to as your representative, agent, attorney, proxy, substitute decision-maker, or delegate (I will refer to them as your representative). This is a critical decision because your representative may be making critical decisions on your behalf.

Here are a few things to consider before choosing your representative:

  • Are they old enough? In some provinces, they will need to be at least 19.
  • Do they live near you? They may need to be able to interact with health care staff or go to a hospital or other health care institution on short notice. Someone from Alberta would not be an ideal candidate if you live in Nova Scotia.
  • Can you put your trust in them? Do you hold the same beliefs and values? Will they agree to follow out your wishes, even if they don’t agree with them all?
  • Are they willing to go through with it? This is a significant ask, so both you and they should be confident that they can handle it.
  • Are they your employee? Employees, with the exception of family members, cannot normally act as your representative. Care workers cannot either.

You should also think about how much authority you’ll give them to make choices on your behalf. You might give them complete control over your health-care decisions, or you could limit what they can and cannot decide for you.

You should then consider the type of health care and treatment that you would like to receive. It may be tough to consider such difficult situations, but it is critical that your representative understands how you feel about prospective treatment alternatives.

These could include, for example, any type of surgery, experimental treatment, life-prolonging treatment (such as breathing support, dialysis, CPR, and a feeding tube), or a blood transfusion. Would you want your life to be extended indefinitely, even if you were permanently vegetative?

If you desire to donate your organs and/or living tissue, you can include this in your living will, but you must first check with your province or territory to find out how to register your consent.

OK, but how do I do it?

Now that you’ve decided on your representation and what to put in your living will, write it all down, sign it, and have your witnesses (and maybe your representative) sign it.

Each province and territory has its own set of rules for what constitutes a legal living will (Nunavut does not have legislation in place yet).

In most provinces and territories, you must sign and date your living will, which must be attested by two adults who must sign in each other’s and your presence. Witnesses are not permitted to be your representative or their spouse, nor are they permitted to be your spouse or kid. In order to act on your behalf, your representative may be required to sign an acknowledgement (in some provinces).

You should retain a copy of your living will in your estate organizer and give a copy to your representative and a copy to your health care provider (you may need to request legal copies of your living will from your lawyer or notary).

Your living will is an essential piece of a complete estate plan. Other components will include your will, a power of attorney (property/financial) and life insurance.

If you would like to discuss your own living will or estate or book a free estate organizer call, just click here and book a time for a chat: FREE FIFTEEN MINUTES

I wish you happiness and health, always.

With Gratitude,

Kevin-Barry Henry.

THIS ARTICLE IS PROVIDED AS A GENERAL SOURCE OF INFORMATION ONLY AND SHOULD NOT BE CONSIDERED TO BE PERSONAL INVESTMENT OR LEGAL ADVICE. READERS SHOULD CONSULT WITH THEIR FINANCIAL OR LEGAL ADVISOR TO ENSURE IT IS SUITABLE FOR THEIR CIRCUMSTANCES.

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