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Two Types of Wills, and Why You Probably Need Both

by Robert J. Green, Esq.
| June 10, 2022 1:00 AM

Nowadays many of my clients are particularly concerned with making sure their legal planning includes planning for medical treatment and decision making. Often people are confused about which legal documents are used for advanced medical planning. Several estate planning documents have similar and easy to confuse names, which adds to the potential for confusion. Estate planning legal matters are already confusing enough, so it certainly does not help to have similar names for related but completely different documents. Let’s take some of the mystery out of two similarly named documents now: the “Last Will & Testament” and the “Living Will.”

A Last Will & Testament is the document most people think of when they think about estate planning documents. Often a Last Will & Testament is just called a “Will”. This is the document you would use to leave instructions regarding what should happen to your possessions and assets when you die (who gets what), as well as who it is that should carry out your wishes (who’s in charge). This document is not used at all until you are deceased.

In Idaho, the person you leave in charge of these matters is called a “Personal Representative” and the matters you leave them in charge of are referred to as your “Estate.” If you have heard the terms “Executor” or “Executrix” – those are the same thing as a Personal Representative (Idaho’s probate law just doesn’t use those terms). Once you are deceased, your Personal Representative can take your Last Will & Testament to the county probate judge and get permission to begin the job of carrying out your wishes regarding your estate. This is called “probating the will.” If you are hoping to avoid the need for your Personal Representative to have to go through the court system to “probate the will,” there are ways to avoid probate court, including the use of a trust, and you should talk to a competent estate-planning attorney about how to do it the right way.

Your Last Will & Testament is also where you appoint a legal guardian for your minor child in case both of the child’s parents are deceased. Doing so guides the court system and the family regarding your wishes. For parents of young children, this may be the single most important part of a Last Will & Testament.

So, what is different about a Living Will? In a word: everything. A Living Will is used while you are still alive (hence the name). A Living Will has a very narrow set of circumstances to which it applies. Specifically, a Living Will is a document used to state what medical treatments you do or do not want administered to you if you are terminally ill and your death is imminent, or you are in what is called a “persistent vegetative state” In very basic/non-medical terms, this means that your body is alive, but your brain is not functioning. (Speak to your physician for a much better understanding of this condition).

If you are under one of these circumstances, a Living Will determines whether you will receive CPR, artificial or natural hydration and nutrition (intravenous for example), mechanical ventilation of the lungs, and any other procedure used by medical professionals. A Living Will can work in connection with another document, called a Physician’s Order for Scope of Treatment (POST) regarding all of these options to have or not have such medical treatments under these circumstances. A POST document is obtained from your doctor’s office and is a document you will fill out along with your doctor after discussing these matters. In Idaho you can have both a POST and a Living Will.

Despite their similar names, a Last Will & Testament and a Living Will are very different legal documents. Almost everyone in Idaho should have both of these documents as part of their overall estate plan. But remember - these are only two documents among about five to ten legal documents that virtually every adult should have in place. If you are unsure if you have everything you need, talk to a professional.

My law firm is currently offering free in-person, telephonic, or electronic consultations concerning creating or reviewing estate planning documents.

Robert J. Green is an Elder Law, Trust, Estate, Probate, & Guardianship Attorney and the owner of Kootenai Law Group, PLLC in Coeur d’Alene. If you have questions about estate planning, probates, wills, trusts, powers of attorney, guardianships, Medicaid planning, or VA Benefit planning, contact Robert at 208-765-6555, Robert@KootenaiLaw.com, or visit www.KootenaiLaw.com.

This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.

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