ARE LIVING WILLS OUTDATED?

If you are considering including a living will in your estate planning documents, experts in probate law offer some tips and information about these critical documents that can help your family members and trusted associates make decisions if you are incapacitated.

The burgeoning field of behavioral economics is bringing a new perspective to the execution and creation of living wills. Early developers of these documents attempted to include every possible contingency, leaving the wills looking more like complicated tax documents than easy-to-use advance directives. These forms do not lead to rational decision-making, according to behavioral economists, who argue that an overabundance of choices can actually lead to mental paralysis.

Living wills often address serious medical problems that are unfamiliar to the people who must execute the documents. Do your heirs or trusted associates have a complete understanding of advanced renal failure? What about metastasized cancers? Dementia? If not, you could be placing your executor or relative in an awkward situation; they must make life-changing health decisions for you without a complete understanding of the problem. Furthermore, living wills are limited because they place a vast amount of trust in physicians’ ability to correctly communicate with intermediaries rather than directly with the patient. It becomes even more difficult for patients to understand their potential health problems as they are crafting the living wills.

Even more alarming is the fact that living wills generally fail to be included in medical charts, leading to actions that may be contrary to patients’ wishes. Rather than relying on a living will, therefore, patients should consider entrusting their health care to a trusted relative or friend through a durable power of attorney. That person will have the ability to make your health care decisions as problems develop, rather than being required to follow the directions contained within a complicated document.

If you are considering a living will or durable power of attorney, think about contacting a qualified probate lawyer. These professionals can help you make decisions that will allow you to control your end-of-life care more effectively.

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Written by Luis E. Barreto

Luis E. Barreto

Luis is a probate and guardianship litigator with over 23 years of experience in the field. Determination of heirs, will contests, breaches of fiduciary duty, removal of personal representatives, guardians and trustees are just some of the types of litigation he addresses. In addition, he administers non-contested estates and guardianships.