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What Does A Living Will Do For Me?

What Does A Living Will Do For Me?


           A living will is an important cornerstone document for any estate plan.   This document allows your to spell out your wishes with respect to medical care if you are not only unable to make your own decisions, but also terminally ill, in a coma or otherwise seriously incapacitated.

For all intents and purposes, in Missouri a living will is the same thing as a healthcare directive or an advanced directive.  Each provides your specific instructions with respect to care in the event of the above situations.

As a living will lawyer O’Fallon, I always make this document the part of any estate plan I create for a client.  People are often confused by the types of treatments covered, but they are generally:

  • artificially supplied nutrition / hydration
  • invasive surgery or other invasive procedure
  • chemotherapy
  • CPR
  • dialysis
  • antibiotics
  • radiation therapy
  • chemotherapy
  • respirator
  • All other “life-prolonging” medical or surgical procedures that are merely intended to keep you alive without reasonable hope of improving your condition or curing your illness or injury.

Here’s an example of how a living will works:

Joan is 65 and discovers she has Stage 3 cancer.  She aggressively fights the disease with chemotherapy and even some other innovative procedures.  However, after a year or so she is informed by her doctor that the cancer is now terminal and that she has less than six months to live.  Joan creates a healthcare power of attorney and living will that names one of her sons, Jack, to make healthcare decisions for her if she cannot.  A few months later she gets an infection, which requires hospitalization.  She requests antibiotics which do not successfully treat the infection.  After a few days she is not responsive and Jack begins make decisions for her.  He discusses options for his mother with her treating doctor who tells him that because she is otherwise terminally ill, the infection cannot be treated successfully and even if it were, he doesn’t think she would return with any quality of life.

Jack reviews the healthcare directive which clearly states from his mother that she didn’t want to be kept alive with no hope of recovery.  Based on those instructions from his mother, he elects to withdraw medical treatment and to make sure his mother is pain free and comfortable, which is known as palliative care.  A few days later, sadly, Joan passes away.

The lesson in the above example is that Joan was able to control her fate even after she could no longer state her wishes about treatment.  It certainly was a difficult decision for Jack, but he was able to recognize that it was his job to carry out his mother’s wishes, not prolong her life unnecessarily if it wasn’t going to help her condition.

Another important lesson:  Joan chose Jack to make this decision, not her other sons.  That’s because she created a power of attorney which stated that Jack and not the others were in charge if she was incapacitated.  Presumably Joan chose Jack for a reason…she knew he would do as she asked and not what he may have wanted.  Without a healthcare power of attorney and medical directive in place, it’s up to your next of kin to make decisions together.

Estate Planning For Children Struggling With Addiction

Estate Planning For Children Struggling With Addiction



 Many parents who have children struggling with addiction or mental illness are often too consumed with caring for those children in the present to given thoughts about who and how those children will be cared for when they are gone. 

It’s a question I ask just about all of my estate planning clients who have children…do your children now or have they struggled in the past with alcohol, drugs, gambling or mental illness?  I’ll remind those clients that there is no stigma about their children’s addiction in my office.  I’m there to help and frank discussion of this issue is unavoidable for proper estate planning. 

So how might estate planning differ in this situation?

We start with a couple of baseline rules.  First, we acknowledge that an addicted child may never recover.  Second, because the child may never recover, we must ensure that the child never has easy access to funds, even if non-addicted children do have easy access. 

A special purpose trust is often the answer.  They offer traditional estate planning goals such as avoiding probate, minimizing taxes and ensuring the intended beneficiaries are named, but also can be tailored for unique family situations involving addiction.  Parents can include language that allows the trustee to deal with both the good and bad, including incentivizing the child to meet certain goals or requirements to receive a distribution from the trust.  An example would be staying sober as evidenced by a drug test or staying on a certain medication that helps the child control their addiction.

In 2017, delaying distributions of principal, as I’ve discussed in prior articles, is not always a bad thing.  As with estate planning for children who are spendthrifts, not distributing assets means they will be invested with a competent financial advisor instead, meaning the money should grow.  If the addiction problem worsens, this provides more resources to fight the addiction.  If the addiction problem recedes, the trustee has more resources to support the child and to encourage their growth through education and career changes.    

Another consideration for proper planning should be to have the child execute a healthcare power of attorney and HIPAA release after they reach 18.  These documents could allow you to help a child in crisis.  Without these documents, you have no legal authority to speak with doctors and discuss medical records and decisions.  While these documents can of course be revoked by your child, having them in place first is preferable to not having them at all. 

Estate planning for addictive children is different but much the same.  With careful consideration you can ensure that you protect your child from their addiction and from themselves.